Congress intended most first-time non-violent offenders receive a non-custodial sentence. That's how federal law worked before the guidelines. But, the guidelines did not fulfill that promise because the majority of those sentenced, end up having to serve time in the crumbling, overcrowded Bureau of Prisons. All that may be about to change, with revolutionary new proposals the Commission is considering.

Take a listen, and then make your voice heard by lodging your comment on the USSG website:

https://www.ussc.gov/policymaking/public-comment/public-comment-2026-proposed-amendments

IN THIS EPISODE:

• Trump Tarriff case and it's implications in the criminal world;
• The major questions doctrine;
• Proposed complete restructuring of sentencing guidelines table;
• Proposed post-offense rehabilitation reductions

LINKS:

Visit the SET FOR SENTENCING SHOWNOTES FOR THE FOLLOWING LINKS:

-prior recent podcast on other guideline amendment

-3 R'S of Sentencing Narrative Article

-New Law 360 Article by Doug Passon and Mark Allenbaugh on Guideline changes

It's easy to get overwhelmed by the onslaught of horrible headlines. But advocates need to fight, and words are our weapons. But the problem is, lawyers are never taught how to cut through the noise and get to the heart of the argument.

Part 1 defined the problem: Abuse of Power; Trump exerting total control over the Department of Justice to weaponize the law against his enemies. Don Lemon is the target de jure.

In this, Part 2 of "Absolute Power" we consult with communications expert Dr. Randy Olson on how to cut the noise and speak clear truth to power. But it's not easy, particularly when the powers that be engage in Steve Bannon's strategy of "flooding the zone with shit." Therefore, Dr. Olson provides valuable guidance on how we can better communicate the truth of what's happening.

IN THIS EPISODE:

• Cutting through the information maelstrom to find the central theme of your communication (the "Dobzhansky" template);
• Understanding the power of narrative;
• Messaging for turbulent times;
• How Steve Bannon weaponizes non-narrative to "Flood the Zone with Shit";
• "The Gish Gallop";
• The "DNA" of narrative: Dream, Nightmare, Action;
• Constructive critique of Abbe Lowell's press release in the Don Lemon case;
• The key to narrative is proper framing;
• A musical finale – in honor of friends and family in Minnesota – "Hospital in Duluth" (written and performed by Doug Passon, with Ken Murray on harmonica).

LINKS:

MORE ON DR. RANDY OLSON & THE "ABT" NARRATIVE TEMPLATE

Our founders wanted US attorneys to retain significant independence from the Department of Justice. If that happens, then experienced prosecutors have the credibility, and moral fortitude to serve as a buffer between the unfettered power of the government and the people.

But the Trump administration wants absolute power. That's why we're seeing a slew of illegal US attorney appointments, installation of outsiders with zero prosecutorial experience, and the prosecutions of Trump's political enemies. Absolute power corrupts absolutely and nowhere is that more apparent than the recent arrest of journalist Don Lemon simply for exercising his first amendment rights.

Therefore the public needs to see this for what it is-- the canary in the coal mine signaling America's rapid descent into authoritarian rule. More importantly, attorneys need to do more to implore courts to curb these blatant abuses of power.

This is a 2-part episode. During the first hour, we talk with Gary Restaino, the former US Attorney for the District of Arizona. He gives his take on why this is not normal and why it matters.

In part two, we speak with communications expert, Dr. Randy Olson, who implores us to cut through "the information maelstrom" with clear communication. But that's not easy, particularly when there's so much happening all at once (Steve Bannon's "flood the zone with shit" strategy). Therefore, Dr. Olson provides valuable guidance on how we can better communicate the truth of the urgency of now.

IN THIS EPISODE:

• The need for "insiders" i.e. experienced prosecutors who understand criminal litigation;
• Over-politization and weaponization in the current DOJ;
• The prosecution of Don Lemon;
• Challenging the prosecutors' grand jury presentations;
• The Trump takeover of individual US Atty offices;
• The danger of unchecked paramilitary forces on city streets;
• What are laypeople and lawyers can do to combat ongoing and blatant abuses of power.

LINKS:

Gary Restaino on LinkedIn – His posts present a powerful perspective from someone who had a front row seat to how a local US attorney office should be run: https://www.linkedin.com/in/gary-restaino-a27290370

Terrifying Abuses of Power:

https://www.politico.com/news/2026/01/23/abuse-of-power-new-jersey-prosecutors-office-00745493

There were big changes in federal sentencing in 2025, and more on the horizon for 2026. So enjoy the first episode of the new year, as we discuss it all with the fabulous Prof. Doug Berman (Ohio State University) and of course, the incomparable Mark Allenbaugh of sentencingstats.com.

IN THIS EPISODE:

• Doug's Tequila of choice: G4 (Which symbolizes the 4 pt. spread in the IU/OHIO state game)( https://g4tequilas.com/)
• New home for Prof. Berman's legendary blog: https://sentencinglawandpolicy.wordpress.com/
• Quick recap of big 2025 guideline amendments;
• Tips on seeking early termination of Supervised Release under new guideline;
• The work ahead for the commission, and whether they will have a quorum;
• Berman's predictions on how the elimination of departures will play out moving forward;
• Proposed changes to the fraud guidelines, including loss table;
• The current pardon situation & how to use it to achieve better sentencing outcomes;
• New proposed guideline "specific offense characteristics" & post-offense rehabilitation;
• Predictions for new proposed guideline amendments;
• Compassionate release limitations may be on the horizon;
• Pending S.Ct. case on plea agreement appeal waivers.

LINKS:

Berman's Blog: If you haven't been receiving those great emails from Prof. Doug Berman's sentencing Blog, it's because it moved. His old platform shut down without warning, taking his subscriber base with it. So PLEASE sign up (or sign BACK up) to Berman's blog at his new home: https://www.sentencinglawandpolicy.com/

Mark Allenbaughs Washington Post article about his stats work for 1/6 pardons: https://wapo.st/45dDz1R

Drugs on the Docket Podcast ( Drug Enforcement and Policy Center (DEPC) at The Ohio State University): https://moritzlaw.osu.edu/faculty-and-research/drug-enforcement-and-policy-center/depc-education/drugs-on-the-docket-podcast

A Second Chance: A Federal Judge Decides Who Deserves It: https://a.co/d/2dmE9bb

More than ever, we live in a country of selective justice. Some commit crimes with impunity and others are forced to run the gauntlet. The events of last week contain many stark examples, from prosecutions to pardons. So Mark Allenbaugh and I couldn't wait until the new year to talk about it. So, here's one last episode for 2025!

IN THIS EPISODE

• Conviction of Judge Hannah Dugan on Obstructing ICE and possible sentences;
• Epstein Files;
• The Pardon/Clemency situation;
• How pardon stats might be used to impact sentencing stats;
• Updates on Appointments Clause litigation;
• Solving Doug's Mystery tequila gift;
• A word on the "FIFA Peace Prize."

It's the last podcast of the year, and what better way to end than with a presentation to the amazing group, White Collar Support (www.prisonist.org). I was grateful to have the opportunity to present to this community, a brainchild of attorney Jeff Grant.

It's particularly fitting for a 2025 finale, as the hour is a recap of the effective sentencing strategies we've been discussing on this podcast, and deploying in our own cases.

Please like, share and subscribe. Have great holidays. Drink a responsible amount of great tequila, and we will see you in 2026!!!

IN THIS EPISODE:

• Doug Passon's story! Including Mitigation Filmmaking, Sentencing Consulting, and Autism-informed criminal defense;
• Narrative is everything;
• Defense Maps;
• The "3Rs" of mitigation narrative;
• There are at least TWO SENTENCINGS that occur in every case;
• Mitigation development must start EARLY;
• Use of qualified experts to bolster sentencing narratives;
• Choosing your prison experts wisely – all are not created equal;
• Effectively using sentencing and life expectancy statistics;
• The nuts and bolts of sentencing mitigation films;
• The value (or lack thereof) of sentencing letters;
• The power of allocution;
• Tips for choosing the very best lawyer for your case.

LINKS:

White Collar Support: https://prisonist.org/

Defense Maps: https://www.defensemap.com/

Sentencing Statistics: www.sentencingstats.com

Dr. Not Guilty, by Muhamad Aly Rifai, MD.

The Simpsons Do Mitigation Videos!? (Clip from Season 30, ep. 15, "101 Mitigations")

FREE DOWNLOADS: CLICK HERE TO VISIT MAINPAGE of the podcast for downloads:

• CHAPTER EIGHT OF DR. NOT GUILTY -- CHOSSING YOUR DEFENDER
• 3RS OF SENTENCING NARRATIVE (BY DOUG PASSON)
• SAMPLE SENTENCING LETTER REQUEST (BY DOUG PASSON)

Justice-involved autistic individuals have valuable insights for understanding criminal legal challenges related to autism. With proper support and guidance, positive outcomes are possible. Dr. Nick Dubin transformed his own experience in the criminal system into a story of advocacy and hope.

IN THIS EPISODE:

• Autism is a condition of profound isolation;
• Examples of autistic vulnerabilities;
• A discussion of "theory of mind" (inability to intuit the intentions or feelings of others);
• How Dr. Dubin became ensnared in the criminal system;
• How to help decision makers understand the truth of autistic deficits;
• Advice for lawyers representing clients with autism;
• Why traditional therapy is not only unhelpful, but potentially traumatizing;
• Autistic "meltdowns";
• Dr. Dubin's advocacy and accomplishments.

PUBLICATIONS BY DR. NICK DUBIN:

The Autism Spectrum, Sexuality and the Law: What every parent and professional needs to know https://www.amazon.com/dp/1849059195/

Autism Spectrum Disorder, Developmental Disabilities, and the Criminal Justice System

https://www.amazon.com/Spectrum-Disorder-Developmental-Disabilities-Criminal/dp/1787753611/

Caught in the Web of the Criminal Justice System: Autism, Developmental Disabilities, and Sex Offenses

https://www.amazon.com/Caught-Criminal-Justice-System-Developmental/dp/1785927132/

OTHER LINKS:

D3: https://dthree.org/

Autism Innocence Project: https://autisminnocenceproject.org/

Judicial System | Autism Speaks: https://www.autismspeaks.org/judicial-system

Laurie Program/Video: Autism & The Justice System: Dr. Laurie Sperry and Doug Passon on Vimeo : https://vimeo.com/1105914147

The appointments clause is enshrined in our Constitution. Checks and balances and separation of powers are a part of our Country's DNA. It's a system we have used for 250 years, designed to prevent abuse of power. If we adhere to that system, then individual liberty is protected.

But this administration daily demonstrates the dangerous view that the executive branch is all powerful. In this case, it does an endrun around the constitution and laws to install loyalist US attorneys who will protect his friends and punish his enemies.

Therefore, the people must pay attention, the lawyers must make every lawful objection, and the courts must send a strong and clear message to the president - comply with the law or face significant consequences.

IN THIS EPISODE:

• Explaining the illegal appointment issue;
• Why we believe this issue is NOT WAIVABLE by the defense, as it is a structural defect; and
• Why this is a constitutional crisis that every American should care about.

LINKS: MOTION TO DISMISS. To download a copy of the motion dismiss we just filed on this issue, go to the main page for this podcast at:

https://setforsentencing.com/podcast/llegals/

Joy Betrand is a world-class criminal defense lawyer with valuable insights on lawyer wellness. The stress and trauma of legal work can harm mental and physical health. In this episode, we discuss manifest injustices we've encountered in the criminal system, and share coping strategies for stress.

IN THIS EPISODE:

• The infamous Phoenix "Backpage Trial";
• Authoritarianism dressed up as "law and order";
• Advocating for pregnant women in custody;
• Managing hostility and finding your courage;
• Practical tips for managing stress.

LINKS:

Athena in the Well (fight giants and win – Joy's podcast)

Joybertrandlaw.com

Michigan psychodrama center

"Hold Fast" Podcast on the Backpage case (Audible)

Robert Roberson is set to be executed by the state of Texas on October 16, 2025. But he is innocent. He has spent 20 years on death row, having been convicted of killing his 2 year old daughter Nikki.

Robert's wrongful conviction was based on the now universally debunked theory of "shaken baby syndrome". But autism plays a significant role in this tragedy as well, because the powers that be misinterpreted Robert's "odd" behavior, as evidence of his guilt.

Robert's case has garnered BIPARTISAN support in the TEXAS legislature. Even the lead detective in the case now unequivocally concludes Robert is innocent. Lastly, a cadre of independent experts have presented unassailable evidence that Nikki's death was not a homicide.

But despite all of this, the Texas Attorney General, Ken Paxton, and the governor, Greg Abbot, refuse to stop this injustice.

Now, it is up to us. Please listen to this episode, which includes two experts from the case, and then ACT.

You can:

1) Call Gov. Abbot (737-277-6778) or reach out to him online and ask him to use his power to grant a 30 day reprieve to allow the courts to rule on his pending petion for a new trial;

2) Visit the innocence project and sign their petition https://innocenceproject.org/cases/robert-roberson/

3) Show up for a rally in support of Mr. Roberson, on October 4 at 1:00pm at the Texas Capitol in Austin, TX.

ADDITIONAL LINKS:

Watch New York Times Opinion Video by former lead detective Brian Wharton here.

More information about Robert Roberson's case can be found here: What People Are Saying About Robert Roberson and here: https://innocenceproject.org/news/what-to-know-about-robert-roberson-on-texas-death-row-for-a-crime-that-never-occurred/

To speak with an attorney for Robert Roberson please contact: [email protected] or 202-669-3411.