On November 1, several amendments to the United States Sentencing Guidelines took effect. Some of these changes are significant, offering advantages to the defense, while others are less beneficial. However, ultimately, this process amounts to nothing more than "Kabuki Theatre," meaning the tortured guideline applications become merely performative, because 18 U.S.C. § 3553, enables discerning judges to overlook the sentencing recommendations provided by the guidelines. Thus, it is crucial to be informed about these amendments to argue effectively whether and how they should be considered in the final analysis.   IN THIS EPISODE:  Some eye-popping facts and stats after forty years of guideline sentencing; Relevant conduct amendment to now exclude acquitted conduct (but it comes with a big but…) Possibility that new litigation may void the Kisor fix because of commission overreach by overriding congress and/or resolving circuit splits;   The “Kisor” work-around to fix the intended loss issue under the fraud guideline; The implication and larger application of the Kisor workaround – i.e., support for the argument that for other guidelines, if it’s in the commentary, it doesn’t count; Clarification of the new Zero Point Offender provisions (ZPO) to deny eligibility for anyone who gets an upward role adjustment; And, perhaps the one bright spot, adding a potential downward departure for “youthful offenders” (mid-20’s or less); Practice tips for navigating the  new guidelines provisions; Information on reaching out to the commission for future proposed guideline amendments.   LINKS:  United States Sentencing Guidelines online:  https://guidelines.ussc.gov/apex/r/ussc_apex/guidelinesapp/home   My new Album!  The guidelines are 40 years old, which is also when I picked up my first guitar.  So, yes, I had to give a shameless plug for my first rock record, "One Good Thing", which is available everywhere you stream your music!  Music is another creative outlet that keeps me sane and quiets my brain:   https://www.youtube.com/playlist?list=OLAK5uy_kyVV0Qs1xMGqXQYZlzHzBgUlA7A35aENI   FAREWELL 2024!!!! This will be the last new episode of 2024.  As always, I wanted to thank you for listening, constributing, liking, subscribing and spreading the word about Set for Sentencing.  We have been going strong for over two years now, and the show was recently ranked #7 among the 35 “must-follow” Criminal Defense podcasts in 2024, via Feedspot (35 Best Criminal Defense Podcasts You Must Follow in 2024).  So, per a tradition I started in 2023, I’ll be taking the rest of the year off!  The remaining episodes of the year will be re-broadcasts of either other podcasts I have appeared on or some earlier episodes I adore and may have been overlooked when the audience was smaller.   2025 will be a wild ride, and we’ll be right here with you, buckled up and ready to roll.   Until then, I’m grateful for all of it, and I hope you find some peace, light and love as the year winds down. 

We’ve spent a lot of time running down the BOP, and not without good cause, BUT we don’t give as much attention as we should to the positive things happening inside those walls.  Lawyers need to learn about and advocate for beneficial programming placements for clients, especially those with special needs. Therefore, helping us get set for sentencing is Dr. Alix McLearen, former acting director of the BOP and psychologist who is responsible for the creation of some really important programs, including the Skills program for clients on the Autism spectrum, IN THIS EPISODE: The Skills Program (for those on Autism Spectrum or have other special needs); The F.I.T. program (Female Integrated Treatment); Directory of First Step Act approved programs; Advice for lawyers to improve their advocacy at sentencing when it comes to prison; Dr. Mclearan's services LINKS: Contact Dr. Alix McLearen at: [email protected]   OTHER BOP PODCAST EPISODES: Please visit www.setforsentencing.com  or YouTube (https://www.youtube.com/@setforsentencing/videos) for several other episodes on the functioning (or more likely dysfunctioning) of the federal prison system, including, Ep. 99 (BOP Horror Stories); Ep. 83 (BOP Stands for Back Off Punishment!); Ep. 70 (BOP Stands for Backwards on Purpose); Ep. 67 (BOP Stands for Big Ol' Problems); Ep. 44 (3 Years of Hell:  Covid & the BOP); Ep. 3 (Telling the Story of Prison at Sentencing). Directory of Programming at BOP:  fsa-approved-program-guides-en.pdf Federal Prison Guidebook (Alan Ellis): https://alanellis.com/federal-prison-guidebook/

We spend so much time and engergy trying to develop our knowledge and skill to better represent our clients.  And keeping abreast of all major developments in the law is paramount to a successful legal practice. But there’s one thing every lawyer needs, and it does not exist – a crystal ball.  If we were clairvoyant we could anticipate favorable changes in the law that we could use to our advantage right now, even before the ruling happens. The bigger problem, especially in federal court, is that if we enter a plea agreement (which is almost every case), we almost always waive our right to challenge changes in the law that would even prove a client is innocent of the crime to which he pled! Therefore, in an effort to aid in your clairvoyant powers on the subject of federal FRAUD cases, we give you Thompson v. United States, a “sleeper case” headed for the Supreme Court. Reading the tea leaves of prior recent court decisions on fraud crimes, the muck at the bottom of the mug tells us that if the Court continues on their quest to narrow the scope of federal fraud prosecutions, could result in a seismic shift in many cases where the fraud is predicated on the accused making “false statements. “   IN THIS EPISODE: Summary of the Thompson case; The distinction between “false statements” versus “misleading statements”; The need to make a record before, during, and after a plea; Consider negotiating a conditional plea that preserves your right to appeal should the Thompson case go our way; How long it may take to get a ruling from the court on Thompson; Plea implications of Thompson; Sentencing implications of Thompson (relevant or acquitted conduct). FREE DOWNLOAD: Visit the shownotes (link below) for this episode for a free download of the article we discussed in this episode laying out the Thompson case and its potential impact on the future of federal fraud! https://setforsentencing.com/podcast/future-of-fraud/ AFTERTHOUGHT:   It occurred to me when editing this podcast a very important practice tip now that there is this great body of S.Ct. law limiting fraud  and cert having been granted on Thompson:  We should strongly consider asking for a “Bill of Particulars” in every case, to make the government state, with specificity what the alleged fraudulent conduct was, as if it was an omission or a misleading statement, rather than an outright LIE, then you may have a fighting chance at defeating the charge, and/or mitigating your sentence.   LINKS: Mark Allenbaugh:   www.sentencingstats.com Check back here soon for an updated link to Mark's Law 360 article on this topic!

Where we are born, how many times we were forced to relocate, and the kinds of things happening, or not happening, in our communities, our schools and other institutions in those locations are all important to give context to a client's life and choices. But how do we tell those stories at sentencing? Thankfully, there's an amazing expert that can do it with compassion, grace and an unparralled skill set:  Social Geogrpaher, Dr. Julie Urbanik! Her outside the box approach to mitigation is something that should be on every defense attorney's radar.   IN THIS EPISODE:   The connection between geography and criminal defense; Explanation of “mitigation geonarratives”; Explanation of “body maps”; Explanation of “memory walks”; Other uses of video to tell the mitigation story;   LINKS: Julie’s website is www.julieurbanik.com Email contact:  [email protected] Here is the link to Dr. Urbanik's peer-reviewed publication on the topics we discussed, including several examples of her work:  https://www.sciencedirect.com/science/article/pii/S2590291121000553   Lastly, we mentioned a couple of other podcasts with incredible legal professionals that can attest to Dr. Urbanik's great work:   Episode 58 - Life in the Shadow of Death with Atty Cyndy Short: https://youtu.be/-0Dsy8pTt_Q?si=g_al0g4FO5k7nZaO   Episode 28: The Heart & the Head: Holistic Sentencing with Mitigaiton Specialist Victoria Rusk https://youtu.be/7vtaFT9TKl4?si=vqnrwEQDMz32ipHg

I can’t think of a better topic for our 100th episode of Set For Sentencing – the topic that is so near and dear to my heart – MITIGATION FILMMAKING! Mitigation films are arguably the most powerful and persuasive weapon in our advocacy arsenal.  They offer an unparalleled way to humanize a client and show the truth of their journey, rather than simply telling it.  However, there’s currently a significant gap in learning and leadership within the world of mitigation filmmaking. With no established standards and a lack of a supportive community, many well-intentioned individuals—whether new to the legal field or even the supervising lawyers—often lack the comprehensive skill set needed to produce these films effectively. This gap can be detrimental to both the client and the broader cause.  That’s why a group of dedicated, highly experienced professionals is coming together to form REEL DEFENSE: A MITIGATION FILM COLLECTIVE! This non-profit entity is committed to educating, building community, and producing these essential films for those who might not have the resources to do so themselves.   Visit www.reeldefense.org and consider making a tax-deductible donation to support this worthy endeavor!   IN THIS EPISODE:   What is a mitigation film and why is it such a powerful persuasive tool of advocacy? Announcing a new, non-profit endeavor – the mitigation film collective! Examples of great results gained through use of video advocacy Why your judges will love these (even the ones that say they hate ‘em); Why the claim that these are just for “rich people” is a false narrative; How you can support the newly formed, non-profit mitigation film collective! Mitigation movies and the Simpsons!? Bad Actors in the Mitigation film arena Upcoming training opportunities with the collective   LINKS: To make a tax-deductible donation or learn more about the Collective, please visit:  www.reeldefense.org Sample sentencing videos:  If you've never seen one, here is a sample.  This was done for the first defendant to plead guilty and be sentenced in the plot to kidnap the Gov. of Michigan.  He received, by far,  the most favorable sentence of any of the individuals charged, and the video played a big part in that:  https://youtu.be/AOhOY3uuvRQ?si=7UO2LO1EPzDDF8SW New Book on Holistic Defense:  Early in the episode, I told you about Katie Carter's new book, Holistic Defense: a Practice.  It's a must read for anyone doing criminal defense work.  You can buy it here:  https://www.carterinvestigations.com/shop/product/   EXTRA:  The Saga of Lance Oppenheim:   One reason for the colletive is to guard against “bad actors” who either enter the space without the proper perspective to do the work, or who simply seek to exploit the medium for their own gain.  We talked specifically, in this context, about a filmmaker named Lance Oppenheim.  While we spared the audience much of the gory details, suffice it to say, Lance manipulated his way into the defense community and behaved badly in order to further his own ambition.  And, while we're here to uplift and inspire, sometimes people just need a reality check.  Back around 2014, Lance was a Harvard undergrad with big ambition.  He took advantage of legal professionals (myself included) that thought they were helping him with a school project, and then preyed on our vulnerable clients by using portions of their mitigation films without permission.   He neglected to mention that the little supposed “student film” he was making was actually going to be submitted to the New York Times for the world to see.  The story of Lance and his careless attitude about what we do and who we do it for, is a cautionary tale of why only those who are trustworthy and hold the mission of providing quality, holistic, representation sacred can be allowed into the inner circle of mitigation filmmakers.

It's not even October yet, but this episode feels tailor made for Halloween.  It's no secret that the BOP is deeply dysfunctional, dangerous, and dehumanizing.  And the stories of deprivation and death inside the walls of the BOP abound.   But lawyers are not telling these stories enough at sentencing, and as a result, Judges often have no idea of the real scope of punishment they are inflicting.  Therefore, it's important to share these true stories, and then act on them- in every case, and in every way you can.  IN THIS EPISODE:  Horror stories of death and deprivation in the BOP; The BOP’s form letter parlor trick; The danger of going to an FMC; The danger of being in transit; How inmates are threatening suicide to get adequate medical treatment; Stories of hope – how lawyers and their experts are slowly but surely achieving results by telling the story of prison; A list of action items for telling the story of, and hopefully FIXING, the BOP.   LINKS:  OIG Compendium of BOP issues:  https://oig.justice.gov/news/compendium-federal-bureau-prisons-oversight-products Expert Prison Consultants (Maureen Baird & Jan Perdue):  https://expertprisonconsultants.com/ 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 --------------------------- BILAL KHAN BOOK LINKS: SURVIVING PRETRIAL, by BILAL KHAN, ON AMAZON:  https://a.co/d/9ZhE9h5 THE 2255 MOTION HANDBOOK: A POST-CONVICTION RELIEF GUIDE FOR FEDERAL INMATES:https://a.co/d/atpF2AP ----------------------- BOP IN THE NEWS: 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   ----------------------------- LIVE CLE SEMINAR WITH DOUG PASSON AND PATRICK BARONE! Lastly, here’s a link to register for our psychodrama and storytelling at sentencing seminar (social atom) CLE in Michigan, in October, here’s the link and don’t forget the podcast discount code : S4S10 https://www.eventbrite.com/e/mitigating-with-impact-harnessing-the-power-of-social-atoms-in-sentencing-tickets-811822341477?aff=websitereferral  

Deferred Prosecution Agreements (DPAs) can help avoid prison and even a keep a person's record felony-free.  And, the Biden DOJ has encouraged it's regional US Attorney offices to devise their own policies for DPAs and to be more liberal with their application. But, local federal prosecutors seem to be ignoring their boss's mandate.  They're reluctant to make new policies, let alone to actually offer diversion. Therefore, we need to be more aggressive about adovocating for DPAs and unearthing local policies.  To that end, we welcome back attorney and author Jon May, who has been at the forefront of this fight.    IN THIS EPISODE: Becoming aware of federal diversion; Advocating for diversion policies nationwide; Suggestions on how to position your case for diversion.   LINKS: Episode 38: Who Says You Can't: Strategies for Creative Lawyering with Jon May https://setforsentencing.com/podcast/jonmay/ 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 Attorney General's 2022 Memo on DPAS: https://sentencing.typepad.com/files/attorney-general-memorandum---general-department-policies-regarding-charging-pleas-and-sentencing.pdf Jon May's Website:  https://www.jonmaycriminaldefense.com/ Jon's Substack:  https://jonmay.substack.com/

It’s a gloomy night in Oklahoma City.  I’m holed up in a hotel working on a capital case.  But I’m in a dark place.  Last week I saw a terrible injustice occur in a matter in which I was involved as a consultant.  The lawyers did a fantastic job of making their case for a non-custodial sentence, but all of their arguments and impassioned pleas fell on deaf ears.   We spend a lot of time on this podcast talking about our triumphs. But anyone who does this work knows that epic losses are part of the deal.  And they hurt.  So let’s talk about it. This is a departure from my usual episode.  I’ve always had a guest.  Today, it’s just me.  Putting it all out there.  It was cathartic.  Probably indulgent. Hopefully there’s something in there you can take away. IN THIS EPISODE: Autism; Avoiding the bus bench lawyer; The truth about flat fees; Working with a competent legal team; Telling the story of prison; The need to walk the walk when it comes to remorse and acceptance – do something to right the wrong; The criminal justice system is a (rigged) lottery. LINKS: First Autism Episode with Jamie and Toni Sparks; https://setforsentencing.com/podcast/understanding-autism-at-sentencing/ Defending Autism With Mark Mahoney (Part One): https://setforsentencing.com/podcast/defending-autism-mark-mahoney-pt-1/ Defending Autism With Mark Mahoney (Part Two): https://setforsentencing.com/tag/mark-mahoney/ Bilal Khan Episode: Is My Lawyer Any Good? https://setforsentencing.com/podcast/surviving-pretrial-vol-1-is-my-lawyer-any-good/ Bilal Khan Book (Surviving PreTrial) https://a.co/d/9vN1A8F On Deaf Ears – this is the part of the soundtrack of my misery this week.  Music is the salve that heals any wound.  I adore this song (and album) from “Joseph the Spouse”, which is fronted by Chris Sullivan, an incredible actor you’ve seen as Toby in “This is Us” and Tom Cleary in “The Knick”.  Anyway, it’s the bomb.  Take a listen.  https://youtu.be/VelUZgdLQwU?si=egf45hGGXASHQZqW    

Psychodrama has been used by trial lawyers for decades. But it hasn't been effectively deployed for use at SENTENCING.... until now. While psychodrama action therapy requires a trained professional to implement, there good news is there are psychodrama-adjacent techniques that can help any lawyer dig for, develop, and deliver a powerful and persuasive sentencing presentation! In this episode, Patrick Barone, a 30+ year criminal defense attorney and certified trainer, educator and practitioner of psychodrama introduces us to two such "psychodramatic action techniques" - the social atom and psychodramatic letter-writing. This is a TWO-PART EPISODE!. The timing of its release was deliberate, as Barone and Passon just co-authored an article for "The Champion", the premiere criminal defense publication of the National Association of Criminal Defense Lawyers (NACDL). The issue will soon be in NACDL member's mailboxes. For those without a subscription, we will soon make the article available (for free) for download at www.setforsentencing.com/psychosentencing1. Lastly, if anyone is interested in registering for our first CLE in Michigan, in October, here's the link and don't forget the podcast discount code : S4S10 https://www.eventbrite.com/e/mitigating-with-impact-harnessing-the-power-of-social-atoms-in-sentencing-tickets-811822341477?aff=websitereferral  IN THIS EPISODE:  - Doug's Social Atom Psychodramatic Letter Writing Our upcoming live CLE presentation  DOWNLOADS: FOR THE FOLLOWING DOWNLOADS, PLEASE VISIT THE SHOWNOTES AT THE SET FOR SENTENCING WEBSITE: www.setforsentencing.com/psychosentencing SOCIAL ATOM INSTRUCTIONS AND SAMPLE & NACDL CHAMPION ARTICLE: The Story of a Life: Uncovering Deep Levels of Sentence Mitigation Using Psychodramatic Action Techniques by Patrick T. Barone and Doug Passon: OTHER LINKS:  Original Psychodrama Podcast (Psychodrama 101) With Patrick Barone: https://setforsentencing.com/podcast/sentencing-psychodrama/ Barone Defense Website: https://www.baronedefensefirm.com/patrick-t-barone.html Michigan Psychodrama Center (Patrick Barone and Dr. Elizabeth Corby): https://www.michiganpsychodramacenter.com/

Psychodrama has been used by trial lawyers for decades. But it hasn't been effectively deployed for use at SENTENCING.... until now. While psychodrama action therapy requires a trained professional to implement, there good news is there are psychodrama-adjacent techniques that can help any lawyer dig for, develop, and deliver a powerful and persuasive sentencing presentation! In this episode, Patrick Barone, a 30+ year criminal defense attorney and certified trainer, educator and practitioner of psychodrama introduces us to two such "psychodramatic action techniques" - the social atom and psychodramatic letter-writing. This is a TWO-PART EPISODE!. The timing of its release was deliberate, as Barone and Passon just co-authored an article for "The Champion", the premiere criminal defense publication of the National Association of Criminal Defense Lawyers (NACDL). The issue will soon be in NACDL member's mailboxes. For those without a subscription, we will soon make the article available (for free) for download at www.setforsentencing.com/psychosentencing1. Lastly, if anyone is interested in registering for our first CLE in Michigan, in October, here's the link and don't forget the podcast discount code : S4S10 https://www.eventbrite.com/e/mitigating-with-impact-harnessing-the-power-of-social-atoms-in-sentencing-tickets-811822341477?aff=websitereferral  IN THIS EPISODE:  - A brief overview of psychodrama 30:00: The Social Atom  DOWNLOADS: FOR THE FOLLOWING DOWNLOADS, PLEASE VISIT THE SHOWNOTES AT THE SET FOR SENTENCING WEBSITE: www.setforsentencing.com/psychosentencing SOCIAL ATOM INSTRUCTIONS AND SAMPLE & NACDL CHAMPION ARTICLE: The Story of a Life: Uncovering Deep Levels of Sentence Mitigation Using Psychodramatic Action Techniques by Patrick T. Barone and Doug Passon: OTHER LINKS:  Original Psychodrama Podcast (Psychodrama 101) With Patrick Barone: https://setforsentencing.com/podcast/sentencing-psychodrama/ Barone Defense Website: https://www.baronedefensefirm.com/patrick-t-barone.html Michigan Psychodrama Center (Patrick Barone and Dr. Elizabeth Corby): https://www.michiganpsychodramacenter.com/

A good investigator can be essential to winning cases at trial or sentencing. They bring a fresh perspective and outside-the-box techniques that help lawyers better communicate the truth of their sentencing story.  This week, we’re thrilled to have Justin Yentes, one of the best investigators in the business, on our podcast! Justin’s wealth of experience in the criminal and civil world, including death penalty cases, makes this episode a must-listen. During our time together, Justin shares super practical case advice, captivating war stories, and even dives into some tequila talk.   If you haven’t already, check out his new podcast, ‘Truth Be Found,’ available on all major platforms. Also, because we talked about cutting edge video investigatory techniques, and showed several video samples, this may be a good episode to watch on YouTube rather than just audio.  In any event, wherever you go, please like, subscribe and leave a review!   IN THIS EPISODE: Using Drones,  Go Pros, VR,  and other cutting edge investigation tools; A journey into gang-ridden El Salvador; immersive storytelling to bridge the gap of cultural understanding; Tips for working with investigators; Pimps up, hos down;  Tequila!   LINKS: Justin's website Truth Be Found (Apple Podcast) Truth Be Found (Instagram) Truth Be Found (TikTok) Truth Be Found (Facebook) EQUIPMENT RENTAL!  Justin and I talked about the option of RENTING video equipment rather than buying, which is always my go to option.  My favorite place to rent top quality equipment, for very reasonable prices and easy shipping is Lensrentals.com.  Here is my "refer a friend link".  If you use it, you get 25 bucks off your first rental!  https://share.lensrentals.com/x/sI5M9C   #LegalInsights #InvestigativeTechniques #JusticeMatters #CriminalLaw #SentencingStories #PodcastRecommendation

The FSA is meant to give non-violent offenders a chance to significantly reduce their term of incarceration through programming and good conduct.  But, the BOP is proving to be unwilling or unable to properly implement the law.   Helping us get set for sentencing this week is Walt Pavlo, founder of prisonology.com and frequent contributor to BOP issues for Forbes online. Walt and I discuss all the issues with FSA (and Second Chance Act) implentation, as well as offer many useful practice pointers.   LINKS   www.prisonology.com   https://oig.justice.gov/news/compendium-federal-bureau-prisons-oversight-products    

We went live the day after Hunter Biden was convicted in Federal Court on three firearms charges. Not only do we take a deep dive into Hunter Biden's sentencing issues, we also peel back the layers of this new-ish word permeating the lexicon of the right/Trump supporters -- LAWFARE. Lawfare refers to the supposed "weaponization" of the criminal justice system.  The term has been deployed on right wing media and social media, in refernce to the many Trump civil and criminal cases, and all of the folks in the Trump orbit who now find them selves having to defend themselves in courts across the land.  Is "Lawfare" really a thing?  If so, what does that term really mean?  And, if it applies, should it not apply to the Hunter Biden prosecution? IN THIS EPISODE: How prevalent are these specific federal gun charges? What are the guidelines and sentencing stats for these offenses of conviction? What other sentencing arguments can/will Mr. Biden present? How will these convictions and sentencing impact his next (tax) prosecution? Sentencing predictions? Is Lawfare real?

Marilyn Mosby, Baltimore’s former top prosecutor, made headlines for her bold actions during her tenure. She fearlessly took on the Baltimore police, charging those involved in Freddie Gray’s death, and advocated controversial positions, including refusing to prosecute low-level drug offenders. However, her own legal journey took an unexpected turn. Accused of federal fraud violations, she faced trial and ultimately received a non-custodial sentence. Was this an outlier? Did she receive special treatment? Join Doug Passon and Mark Allenbaugh as we delve into these questions and more on this week’s episode of Set for Sentencing!   IN THIS EPISODE:   The backstory of the Marilyn Mosby Prosecution; Digging into the sentencing data and the facts to determine whether her non-custodial sentence was warranted; Critique of the sentencing memoranda (spoiler alert, the defense memo was F’ing fantastic); In praise of the Federal Public Defender; Gender disparity at sentencing; Walking the tightrope of using your kids as mitigation; Why lawyers should be less scared about going to trial; Remember that the guidelines actually suggest NON-CUSTODIAL sentences for ALL first time offenders!; Arguing collateral consequences at sentencing; Navigating the pitfalls of not accepting responsibility after trial.   LINKS:   "The 3Rs of Sentencing Narrative":  In this I make a few references to something I call “relativity” and “redemption” stories, which are 2 of the “3Rs” of sentencing. If you’d like to dig into the full 3Rs, visit the shownotes on the website and you'll find a link to an article I wrote on the subject for the Champion. www.setforsentencing.com/mosby  

It shocked the nation when David DePape, driven by insane QAnon conspiracy theories, violently attacked Paul Pelosi, husband of former Speaker Nancy Pelosi.   A federal judge recently sentenced DePape to 30 years in prison.  With that de facto life sentence looming, we uncover a legal twist: the judge’s oversight during sentencing denied him the chance to speak in his own defense.  Now, a follow-up hearing is in the offing, leaving us wondering—will DePape break his silence, and will the sentence change? More importantly, at sentencing his lawyer reveals that DePape has documented mental health disorders, including Autism Spectrum Disorder.  Yes, we're going there -- again. In this episode, we explore the intersection of radicalization and vulnerability, particularly online, among individuals with ASD.  Could this condition render them more susceptible to extremist ideologies?   #DePapeCase #SetForSentencing #Radicalization #MentalHealth #Autism   LINKS:   Original DePape Podcast:  https://setforsentencing.com/podcast/david-depape-pelosi-attacker-guidelines-mitigation-breakdown/   Alan Ellis - Articles about What Judges Look For At Sentencing: https://alanellis.com/law360-series-sentencing-representation/   For a copy of Judge Bennett's Article, go to shownotes at the Set for Sentencing website: https://setforsentencing.com/podcast/depape-pelosi-at…cing-post-mortem/

The pre-sentence report is arguably the most crucial sentencing document. Not only does it serve as a vital tool for judges during sentencing, but it also acts as the “bible” that the Bureau of Prisons (BOP) relies on to make critical decisions about our clients. Unfortunately, many lawyers struggle to properly prepare their clients or ensure the report’s accuracy before it reaches the BOP. In this episode, we’re fortunate to have Leslie Lockwood as our guest. Ms. Lockwood spent her career as a pre-sentence report writer in the Eastern District of NY, including several years as a supervisor. She’ll provide valuable insights into federal pre-sentence reports, covering topics such as best practices for pre-sentence interviews, the role of pre-sentence writers, and more.

Artificial intelligence is here and it’s getting more sophisticated and more ubiquitous every day.  Indeed, the legal community seems to be largely embracing A/I with open arms.  But the jury is still out whether this somewhat terrifying new technology is going to be our savior or our destroyer.  Therefore, helping us get set for sentencing this week are two great gentlemen:  a lawyer (Patrick Barone) and communications expert (Dr. Randy Olson) to debate the pros and cons of A/I in life, and in law.   IN THIS EPISODE:  Using A/I as an editor in legal writing; Using A/I to help a client prepare to allocute at sentencing; Using A/I to summarize voluminous discovery and creating summaries for clients; A/I’s limitations; The concept of “prompt engineering” and it’s importance in generating the best A/I results; The importance of infusing meaning into our sentencings, our stories, and our lives.   OTHER LINKS:  We spent a fair amount of time discussing the "ABT" Narrative template. It's a simple way of powerfully communicating in narrative form in any setting.  I co-authored a book on this with Dr. Randy Olson and have done a few podcasts on the topic.  Here's Episode four:  https://setforsentencing.com/podcast/narrative-is-everything/ Here's a link to buy the book:  https://a.co/d/0dVt1MP As we discussed, the big fault with all of this new technology is the risk that it robs your pursuits of all meaning!  This goes to the core of what Randy’s big critique about A/I is at this moment, it’s MEANING that makes our lives worth living.   That’s why we love telling, watching, reading, and listening to stories so deeply – great stories are infused with big meaning- universal truths about life.   I wrote about this on my blog a few years back in the context of the epic Tarantino Film, “Once Upon a Time in Hollywood”.  Take a look:      https://dougpassonlaw.com/articles/every-good-story-has-meaning/ More on Patrick Barone: https://www.baronedefensefirm.com/ More on Randy Olson:  http://abtframework.com/randy-olson/  

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

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

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

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

The Bureau of Prisons is dysfunctional, dangerous and dehumanizing.  Its failures have been well-documented recently in the press, in OIG reports, and in judicial opinions. But some judges still don't understand that they have the power and the responsibility to do something about it.  Moreover, lawyers don't always know that BOP dysfunction is powerful sentencing mitigation. More specifically, if the BOP is ill-equipped to provide adequate medical care, mental health treatment, programming and safety, then we MUST send less people to BOP and for less time! This isn’t just my opinion – it’s a direct quote from the Director of the Bureau of Prisons, Collette Peters, on her recent appearance on 60 Minutes. Helping us get set for sentencing is a returning champion, Walter Pavlo, frequent Forbes contributor and founder of prisonology.com, a reputable BOP consulting firm.   IN THIS EPISODE: The good, bad and ugly of Collette Peters’s recent 60 Minutes appearance; The scathing new opinion from Judge Furman of the SDNY concerning abysmal conditions in MDC Brooklyn; Changes to the sentencing guidelines support giving less time to less people and alternatives to incarceration; Practical advice for presenting BOP problems as MITIGATION in every sentencing and re-sentencing (i.e. compassionate release, clemency, etc.). LINKS: Walter Pavlo:  www.Prisonology.com 60 minutes piece with Collette Peters:  https://youtu.be/3l6wdVxr6nE?si=71Wy9-d9WoQkDh6B Furman Opinion (U.S. v. Chavez):  https://www.nysd.uscourts.gov/sites/default/files/2024-01/22cr303%20US%20v%20Chavez%20Opinion%201.4.2024-1.pdf --------------- 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