Set For Sentencing

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 of the most frequently used grounds for eligibility. In this episode, Passon convenes two of the sharpest minds in federal sentencing — regular guest Mark Allenbaugh and returning star Prof. Doug Berman — for a deep-dive reaction. Together, we break down what each case actually holds, where the majority reasoning goes wrong, why the dissents matter, and — critically — what still works. Because even though it seems the door is shrinking--- it hasn't closed. If you litigate compassionate release, this episode is required listening! IN THIS EPISODE: History of compassionate release; (25:12) Discussion of Fernandez; Advice for arguing around these two restrictive opinions; (39:00) Discussion of Rutherford; How both opinions usurp the role of both Congress and the US Sentencing Commission; (56:00) How two pending cases, Maxwell and Beaird, may impact future compassionate release cases LINKS: Sentencing Law and Policy – A new home for SL&P (Berman's Blog) A great substack where Prof. Berman frequently contributes: Sentencing Matters Substack | DAB | Substack On that note, here's a great SM Substack piece from today on this very issue: https://open.substack.com/pub/sentencing/p/textualism-in-name-policymaking-in?r=1f0z1k&utm_campaign=post&utm_medium=email Link to Judge Block's Book, A Second Chance: A Federal Judge Decides Who Deserves It, on Amazon: https://a.co/d/07xJD1zs Drugs on the Docket, Season 3: Excited for start to Season Three of "Drugs on the Docket" podcast | Sentencing Law and Policy Set for Sentencing is heading to Substack! We have not officially launched, but by all means, subscribe for future awesomeness coming down the pike: https://substack.com/@dougpassonlaw

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 good plea. IN THIS EPISODE: Knowing the hallmarks of a "good" plea agreement; Knowing the long-term implications of rights you will be required to waive; The crucial difference between plea "stipulations" and plea "recommendations" Making sure your plea does not tie your hands on facts, arguments or mitigation you can present at sentencing; Bargaining for conditional appeal provisions; Bargaining away mandatory minimums; Pleading to an offense that substantially reduces potential statutory maximum; Keeping the door open for compassionate release and new challenges based on future changes to the guidelines or law ; The Hunter case, pending in the Supreme Court, that may make appeal waivers unconstitutional; And, now for something completely different, a recommendation for a powerful documentary ("Predators"). Here is a link to the trailer for the documentary, "Predators". This film takes a fresh look at the "To Catch a Predator" series, and asks hard questions about Hansen's motivations and methods, and how he ruined lives ruined for ratings. It does what criminal defense lawyers have to do every day, take a hugely reviled class of alleged offenders, and demonstrate that there is another side to the story.

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

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

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

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

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 that has resulted in depraved acts of racist and antisemitic violence (See Southern Poverty Law Center link below). Sadly, the DHS, ICE, and other federal agencies have become something resembling the American gestapo, attempting to reduce the number of non-whites in this country, to retain power in perpetuity. In furtherance of these policies, they are arresting judges, conducting warrantless searches of homes and businesses, and even raiding US congressional offices and detaining staffers, again without warrants. They are threatening prison for even speaking out against these actions. In Part 2 of our collaboration with the Truth Be Found Podcast, we talk about the terrifying erosion of our civil rights and the racist rhetoric underpinning the worst actions of our government. IN THIS EPISODE: Justin Yentes describes the prison where Mr. Abrego-Garcia is held; The history of El Salvador President Nayib Bukele's total erosion of Due Process in his own country; The real risk of harm and even death Mr. Abrego-Garcia faces in this facility; Expert consultant, former gang member describes the BOP's approach to "gang management"; Practical tips for defense lawyers dealing with gang designation in a Pre-Sentence report; Tom Homan espouses racist, white-nationalist, "great replacement theory" to justify his draconian immigration policies. LINKS: Check out the incredible Truth be Found Podcast wtih Justin Yentes! Southern Poverty Law Center: The Racist 'Great Replacement' Conspiracy Theory Explained