Set For Sentencing
Over a million people a year face sentencing, and for clients and their loved ones, it is the most important day of their lives. Unlike at trial, there is virtually no limit to the kind of information a lawyer can present to advocate for their client and demonstrate their humanity. This podcast draws on 25+ years of criminal defense experience, passion for storytelling, and expertise in producing mitigation videos to help lawyers and clients craft compelling sentencing narratives. It presents cutting-edge resources, world-class experts, and the straight scoop on the often dysfunctional system, all in service of bringing more justice, humanity, and hope to the sentencing process.
Episodes
From Skeptic to True Believer: A Sentencing Lawyer's AI Confession
Two years ago I did a podcast on A/I with Patrick Barone and Randy Olson, telling them "hell no, I won't go." It made up facts and cases, it couldn't spell, and I was certain it could never touch the humanity at the heart of sentencing advocacy. But the machines got smarter and the stakes got bigger. Therefore, yours truly went from skeptic to true believer. I am still trying to learn this mind-b
Hot Pink Spotlight: The Clancy Mistrial Puts Women's Health on Trial (w/ Nellie King)
Over a million Americans face sentencing every year, and no case has put the question of criminal responsibility on trial like the Lindsay Clancy case. The country watched a Massachusetts jury weigh whether a mother in the grip of severe postpartum psychosis could be held criminally responsible for the unthinkable, and after 85 witnesses and 36 hours of deliberation, eleven jurors voted not guilty
Luigi Mangione Pleads Guilty. Here's What Happens Next.
When someone pleads guilty to intentionally killing another person, with premeditation, in broad daylight, it's hard to imagine anything other than a life sentence. But that's not the end of the story for Luigi Mangione, because his federal guilty plea is a "no agreements" plea. That means no sentencing stipulations, no mandatory minimums, and full rights to appeal. Perhaps most important, the
BOP 2026: Crumbling, Weaponized, but (Finally) Wired?
Prison isn't meant to be easy and being inside is punishment. If every incarcerated human has a fair designation process, safe infrastructure, and meaningful programming, then safety and rehabilitation happens. But in two stunning developments, two things are now unequivocally clear: the facilities are crumbling, and the designation process can now be weaponized by the DOJ. A quietly updated
The Process is the Punishment: Hannah Dugan Sentencing Post-Mortem
Ideally, every sentence serves to promote respect for the law. But in an age of the most lawless DOJ in American history – respect for the law is a dead letter. The sentencing of Judge Hannah Dugan is the most recent example of a how a weaponized DOJ is built for retribution, not justice. Doug Passon and sentencing stats expert Mark Allenbaugh conduct one of their famous "sentencing post-mortems
The Fate of John Bolton: Trump Doesn't Just Pick Who's Prosecuted — Now He Picks Your Prison, Too
Ambassador John Bolton pled guilty last week to mishandling classified information, and the plea includes a stipulation that if he receives prison, the term is no more than five years. On paper, this agreement reads like a win. But the plea isn't the paper that matters most, because the same week Bolton signed his plea, Acting U.S. Attorney Todd Blanche quietly issued a policy formalizing somethi
Manifest Injustice: Hunter, Hemani, & Buh-Bye Blanche
🎙️ NEW EPISODE: The Supreme Court just moved the goalposts on federal sentencing — and the next AG fight starts now. If federal defendants could trust that pleading guilty meant a predictable outcome, then the system would actually function the way it's sold to them. ⚖️ But SCOTUS just complicated that bargain. In Hemani, the Court reined in prosecutions under the felon-drug-gun statute. In Hunt
New Compassionate Release Cases: Is the Door to Freedom Shrinking?
With the First Step Act of 2018 came the great hope of expanded grounds and use of "Compassionate Release." Judges were offered the promise of wider discretion to give deserving clients a second look at sentencing. But, the Supreme Court just made compassionate release a whole lot harder to get, because in two back-to-back decisions — Fernandez and Rutherford — the Court slammed the door on two
"8647": A New Low for Trump's DOJ
It's hard to understand how someone like James Comey could be indicted for posting a picture of seashells on a beach. But, just when it seems like we arrived at the full-on DOJ "low-tide", Todd Blanche and J.D. Vance roll out the new "weaponization fund". Will it ever be safe to go back in the water? In this episode of set for sentencing, Mark Allenbaugh and I tackle a number of subjects, wit
Negotiating Plea Agreements with Bite (Pt. II of "Straight Up No Chaser")
The decision whether to enter into a plea agreement with the government/state is the most important choice a client will make. But too many clients enter into bad pleas - ones that promise little and give up a lot. A client shouldn't have to settle for a plea that lacks real bite. Therefore, in Part II of our plea agreements bonanza, we go through, point by point, the elements of what makes a g
Pleading Straight Up, No Chaser! (Part I)
Pleading guilty and waiving your right to be presumed innocent until proven guilty beyond a reasonable doubt at trial is the most important choice a client will make in any case. But the decision to enter into a less than ideal plea agreement with the government is often influenced by fear, intimidation and false information. So, it's time to give greater consideration to a third option – pleadi
Atkins & The IQ Fallacy: Why IQ is Not a Reliable Measure of Culpability (with Dr. Ted Lidsky)
The Supreme Court determined that individuals with intellectual disabilities are less culpable and should not face capital punishment. Diminished Capacity is also applied in non-capital sentencings. In Hamm v. Smith, the Supreme Court is revisiting the 70 IQ cutoff because of new understandings about errors in measurement. But the bigger problem is IQ tests fail to measure key cognitive deficit
Life for Charles "Sonny" Burton: Act now to Save Sonny!
Charles "Sonny" Burton is a 75 year old man on Alabama's death row. But he NEVER KILLED ANYONE. He was convicted under the archaic and unjust "felony murder" rule. His more culpable co-defendant got life. Six jurors regret their vote and want him to live. The victim's daughter wants him to live. There has likely never been a more compelling case for clemency. It's now in the hands of the go
What's Crackin' at the Sentencing Commission - New Proposals that Could Change the Shape of Federal Sentencing
Congress intended most first-time non-violent offenders receive a non-custodial sentence. That's how federal law worked before the guidelines. But, the guidelines did not fulfill that promise because the majority of those sentenced, end up having to serve time in the crumbling, overcrowded Bureau of Prisons. All that may be about to change, with revolutionary new proposals the Commission is con
Absolute Power (Pt.II): Clear Messaging in the Age of the Information Maelstrom
It's easy to get overwhelmed by the onslaught of horrible headlines. But advocates need to fight, and words are our weapons. But the problem is, lawyers are never taught how to cut through the noise and get to the heart of the argument. Part 1 defined the problem: Abuse of Power; Trump exerting total control over the Department of Justice to weaponize the law against his enemies. Don Lemon i
Absolute Power Pt. I: Politization and Weaponization at the DOJ (With Gary Restaino)
Our founders wanted US attorneys to retain significant independence from the Department of Justice. If that happens, then experienced prosecutors have the credibility, and moral fortitude to serve as a buffer between the unfettered power of the government and the people. But the Trump administration wants absolute power. That's why we're seeing a slew of illegal US attorney appointments, instal
A Look ahead: Sentencing Developments for 2026
There were big changes in federal sentencing in 2025, and more on the horizon for 2026. So enjoy the first episode of the new year, as we discuss it all with the fabulous Prof. Doug Berman (Ohio State University) and of course, the incomparable Mark Allenbaugh of sentencingstats.com. IN THIS EPISODE: Doug's Tequila of choice: G4 (Which symbolizes the 4 pt. spread in the IU/OHIO state game)( ht
For My Enemies, the Law
More than ever, we live in a country of selective justice. Some commit crimes with impunity and others are forced to run the gauntlet. The events of last week contain many stark examples, from prosecutions to pardons. So Mark Allenbaugh and I couldn't wait until the new year to talk about it. So, here's one last episode for 2025! IN THIS EPISODE Conviction of Judge Hannah Dugan on Obstructi
Year End Review (White Collar Support Presentation)
It's the last podcast of the year, and what better way to end than with a presentation to the amazing group, White Collar Support (www.prisonist.org). I was grateful to have the opportunity to present to this community, a brainchild of attorney Jeff Grant. It's particularly fitting for a 2025 finale, as the hour is a recap of the effective sentencing strategies we've been discussing on this po
Understanding Autism with Dr. Nick Dubin
Justice-involved autistic individuals have valuable insights for understanding criminal legal challenges related to autism. With proper support and guidance, positive outcomes are possible. Dr. Nick Dubin transformed his own experience in the criminal system into a story of advocacy and hope. IN THIS EPISODE: Autism is a condition of profound isolation; Examples of autistic vulnerabilities; A
Illegals: How Trump is Ignoring the Constitution and Laws to Install Loyalist US Attorneys
The appointments clause is enshrined in our Constitution. Checks and balances and separation of powers are a part of our Country's DNA. It's a system we have used for 250 years, designed to prevent abuse of power. If we adhere to that system, then individual liberty is protected. But this administration daily demonstrates the dangerous view that the executive branch is all powerful. In this ca
Hostility & the Heart, With Joy Bertrand
Joy Betrand is a world-class criminal defense lawyer with valuable insights on lawyer wellness. The stress and trauma of legal work can harm mental and physical health. In this episode, we discuss manifest injustices we've encountered in the criminal system, and share coping strategies for stress. IN THIS EPISODE: The infamous Phoenix "Backpage Trial"; Authoritarianism dressed up as "law and
Save Robert Roberson.
Robert Roberson is set to be executed by the state of Texas on October 16, 2025. But he is innocent. He has spent 20 years on death row, having been convicted of killing his 2 year old daughter Nikki. Robert's wrongful conviction was based on the now universally debunked theory of "shaken baby syndrome". But autism plays a significant role in this tragedy as well, because the powers that be mi
Terrible, But Not "Terrorism": the Death of Charlie Kirk
The murder of Charlie Kirk is tragic and unacceptable, and the perpetrator must face justice. If we can all agree on that, we can begin to heal. But, it's not "terrorism" under any definition, because at this point there has been zero indication that the alleged perpetrator acted with the intent to intimidate or coerce a civilian population or to influence or retaliate against government policy. B
White Collar Support with Jeff Grant, Esq.
To quote the great Rocky Balboa, "it ain't about how hard ya hit. It's about how hard you can get hit and keep moving forward." That sums up the incredible journey of attorney Jeff Grant, founder of White Collar Support and organizer of the upcoming White Collar Conference online seminar. IN THIS EPISODE: Jeff's redemption story of overcoming addiction and prison to regain and reimagine his
Maxwell's Silver Hammer (PART II): Transfer to Minimum Camp & Sentencing Post Mortem
In Part II of our deep dive into the Ghislaine Maxwell case, we begin with BOP Prison consultant, Walter Pavlo of prisonology.com to talk about her transfer to a minimum security camp. Then, we resume with Mark Allenbaugh of sentencingstats.com for one of our famous "sentencing post-mortems" to see what we can learn from Maxwell's sentencing proceeding. IN THIS EPISODE: Maxwell's unprecedent
Maxwell's Silver Hammer: Part I
The saga of Jeffrey Epstein is ongoing and ever-present in the news. And there are powerful lessons to be learned. But the talking heads are mostly just spinning their wheels. So, if you're seeking some straight talk and inside scoop about all of it, you've come to the right place. This is a 2-part episode, as there is much ground to cover. The title, of course, is an homage to the great Bea
Holding Court with Judge Nancy Gertner!
An independent judiciary is the cornerstone of a healthy democracy. But judges are under attack. Therefore, we must stand the post and protect judges from intimidation, unlawful prosecution, incredulous calls to impeach, or worse. And, when it comes to federal criminal sentencing, judicial independence is also crucial to the fair administration of justice. But judicial independence has been und
For My Enemies, the Law: The Return of Kilmar Abrego-Garcia
The Trump administration stated that Kilmar Abrego-Garcia would never return to US soil. But they just back-tracked and brought him back. Unfortunately he now faces federal prosecution under a new indictment for conspiracy and alien smuggling. The bigger problem is the govt. has gone to great lengths to wage an extra-judicial smear campaign against him, with a variety of other horrendous allega
Due Process Denied (PART II): Kilmar Abrego-Garcia and the "Great Replacement"
In understanding the current administration's draconian deportation policies, nothing makes sense except in the light of white supremacy. The underlying animating force of these policies, openly stated by Tom Homan during a white house press conference, is "the great replacement theory". Propagated by white nationalist, white supremacist fascists, operating in and out of government, it's a lie t
Due Process Denied: Kilmar Abrego-Garcia (PART ONE)
America might have moved on from Kilmar Abrego-Garcia, but we have not. So, ask yourself: What happens when the U.S. government indefinitely sentences someone to a foreign prison without any due process and no one stops them? In this episode (part 1 of 2), I appear on Justin Yentes's podcast "Truth Be Found" to discuss the implications of this case. Justin is an amazing criminal investigator, wh
George Santos Sentencing Post-Mortem
On Friday, April 25, George Santos learned his fate, at his fraud sentencing in federal court. He had two years since his indictment to walk the walk, demonstrate extreme remorse and acceptance, and take meaningful steps to address the problems that got him here and convince a judge he wouldn't make the same mistakes again. But the government painted him as an unrepentant fraudster who was bound t
Seismic Shift: Big Changes to the Sentencing Guidelines & the Country
Although we often complain about the sentencing guidelines, this week, I find myself thankful that we still live in a country that has courts and due process, in the federal criminal courts. At least for now. So today, we celebrate the death of guideline departures, lament the death of due process in immigration, and worry for the future of this democracy. That's why we start off talking about t
Reign of Terror: Tesla, Luigi Mangione, & Beyond
I'm back. I've been in hibernation for the last couple of months, basically paralyzed by what can only be described as a rapid descent into authoritarian hell. In his seminal work, "On Tyranny", Timothy Snyder warns: "Listen for dangerous words. Be alert to the use of the words extremism and terrorism. Be alive to the fatal notions of emergency and exception. Be angry about the treacherous use o
Anchor's Aweigh: New Policies and New Proposed Guidelines Find Us Unmoored in 2025
I call this episode "Anchor's Aweigh" for two reasons. First, there is a potential seismic shift in federal sentencing coming, which would go far to eliminate what we call the dreaded "anchoring effect" of the draconian and deeply dysfunctional sentencing guidelines. If this passes, it will likely be the biggest change in guideline sentencing since Booker was decided twenty years ago. The other r
The Truth About Restitution in Federal Criminal Cases with Ashley Adams, Esq.
Restitution is often imposed to compensate crime victims for their losses. Done correctly, it can help victims recover and allow offenders to move on after serving their sentence. However, defense attorneys sometimes overlook restitution issues, resulting in burdensome payment orders. These can extend prison time and hinder reintegration after release, making restitution effectively a lifelong pun
The Truth About the Presidential Pardon Power With Margaret Love & Mark Allenbaugh
It's January 2025, and we're in the final days of the Biden administration. He has had a busy last month or so issuing pardons and commutations. This unfettered power is rightly scrutinized but often misunderstood. The bigger problem is, the whole damn process appears to be broken. And although Pres. Biden has done some good things with his power, it still represents a small fraction of those
2024 United States Sentencing Guideline Amendments: A Front Row Seat to the Kabuki Theatre
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 jud
BOP Programming With Dr. Alix McLearen
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 Future of Federal Fraud with Mark Allenbaugh
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 advantag
The Why of the Where: Mitigation Geo-Narratives with Dr. Julie Urbanik
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 sk
Mitigation Films: Harnessing the Power of Visual Narrative to Humanize our Clients
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 sign
The BOP Horror Show & What We Can Do About It
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.
Federal Pre-Trial Diversion With Jon May
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 of
On Deaf Ears: When Sentencing Goes Wrong
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 po
Psychodrama at Sentencing: (PART TWO)
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, Patr
Psychodrama at Sentencing (PART ONE)
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, Patr
Outside the Box Defense with Investigator Justin Yentes
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
The First Step Act (with Walt Pavlo)
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
Bonus YouTube Livestream: Hunter Biden Conviction - What To Expect at Sentencing and is Lawfare Really a Thing?
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
Marilyn Mosby Sentencing Post-Mortem
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 t
DePape (Pelosi Attacker) Sentencing Post-Mortem
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-u
Pre-Sentence Reports
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 thi
The Artificial Lawyer: A Debate About the Usefulness of A/I in the Legal Arena
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 Bar
Trump on Trial
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 rang
Sam Bankman-Fried: Sentencing Post-Mortem
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 str
Guidelines Blues: The Commission's Next Moves
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 Allenbaug
When Justice Depends on It: The Need for Professional Standards for Mitigation in All Criminal Cases
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
BOP MEANS: Back Off the Punishment: Making the Case That Judges Must Fix the BOP by Imposing Fewer and Shorter Prison Terms
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
Indian Country: A Glimpse into Tribal and Federal Indian Criminal (In)Justice
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
A Child's Poison: Lead Poisoning as Sentencing Mitigation with Dr. Ted Lidsky
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 childr
Year of the Dragon: Sentencing Guideline New Year's Cheers & Jeers
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 T
A Brief Haitus: Set For Sentencing Takin' a Break
Hey everybody. We've been dropping new episodes every week for for about 80 weeks now. It's time to sit back, relax and ride out the rest of 2023. We'll be back in full force come 2024. Until then, enjoy some old episodes, like, share, subscribe and spread the word. Together we will make meaningful and lasting change in our broken sentencing system. Until then, keep the faith, hang in there,
David DePape (Pelosi Attacker): Guidelines & Mitigation Breakdown
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 b
Making Sense of the Georgia Trump RICO Pleas (Vol. I)
Three lawyers (so far) have plead guilty in the Georgia State RICO case. I had so many questions about what these pleas and sentencings really meant - for the lawyers who entered them, the remaining defendants, and the pending federal matters. But, I don't practice in Georgia state court. Therefore, I put out the "bat signal" on the NACDL listserve and found two wonderful lawyers to help us b
Guideline Tricks & Treats: A Rundown of All New Sentencing Guideline Amendments That Took Effect on 11/1/23
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
Untangling Fear For Lawyers & Clients With Prof. Heidi K. Brown
It's Halloween! What better time to talk about FEAR!!!??? Many think fear is the great motivator, but it can also be the great debilitator. Fear prevents lawyers from "going for it" at sentencing and making the extraordinary ask on behalf of their clients. Fear also prevents those clients from communicating their own truth on the big day. Therefore, helping us get Set For Sentencing is Prof. H
What is Truth? The Difference Between Reality TV, Documentaries and Sentencing Mitigation Videos
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 trut
Sam Bankman-Fried: Is Autism the Missing Piece of Mitigation?
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
Imperfect 10: Why thousands will be deemed ineligible for the ZPO and what to do about it
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 pr
Danny Masterson Sentencing Post-Mortem
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,
Bureau of Prisons (BOP) Means "Backwards on Purpose"
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 ind
Find the Hurt, Amplify the Pain, Heal the Wound: 3 Steps to Bulletproof Legal Narrative
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
GOIN' RETRO: Retroactive Application of ZPO and Status Point Amendments
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 i
BOP Stands for Big Ol' Problems: Exposing Dysfunction & Danger at the Federal Bureau of Prisons
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 B
Straight to Sentencing: Pre-Trial Detention Through the Lens of Sam Bankman-Fried (and DJT)
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 f
Acquitted Conduct Revisited: Mmmmm... Flavors of Evil
If you wanna feel really dim, spend an hour or so trying to debate the fine points of federal constitutional law with Prof. Doug Berman and Mark Allenbaugh. We had to come back to the issue of how the guidelines condone using charges where a client goes to trial and a jury finds her not guilty, against them at a later sentencing proceeding. The Supreme Court had the opportunity to strike down t
Too Cute By Half: Why Hunter's Plea Went South
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
The 3rd Trump Indictment (Sentencing Guidelines): Everything Nowhere All at Once.
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.
Surviving Pretrial, Vol. 1: Is My Lawyer Any Good?
All lawyers are not created equal, and that applies to private practice and public defenders. But clients don't necessarily understand how to separate the wheat from the chaff. Bilal Khan understands this better than most - he's been through it all, fighting his serious federal charges for years, and engaging seven lawyers in the process. He has taken his knowledge and know-how and shaped it int
