Set For Sentencing

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 – pleading "straight up" with no written agreement with the government. Why would one ever consider doing such a thing? Listen and find out!

This is a two-part episode, as there is a lot of ground to cover. Part One lays the foundation, and gives great stats. Part Two, dropping soon, arms clients with the information they need to ask the right questions and to work with counsel to make the best choice.

IN THIS EPISODE:

• Tequila talk (I promise this week it's totally relevant to the topic at hand!);
• Current events: the latest on the fight to disqualify the US attorney in New Jersey;
• Current events: predictions on who will be the new AG;
• DOJ's proposed rule to shut down state bar ethics investigation of DOJ lawyers;
• What does it mean to plead guilty "open" or "straight up";
• The (sometimes) myth of the "trial penalty";
• Statistics about pleas vs. trial.

ALSO: MAKE YOUR VOICE HEARD!!! Comment Today (4/6) and tell the DOJ lawyers they are NOT above the law or rules of ethics:

CLICK ON THIS LINK TO COMMENT!!!!

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 deficits tied directly to moral and criminal responsibility.

Therefore, it's time for courts to move beyond IQ as the sole measure of brain functioning.

IN THIS EPISODE:

• Five misconceptions about whether IQ is a valid reflection of impaired cognitive functioning;
• A list of all cognitive deficits IQ tests do NOT measure;
• "The Practice Effect" and other measurement errors in IQ testing;
• Atkins in the context of Autism – the rationale for Atkins is the same, but the standard is useless;
• The curious case of Phineas Gage – frontal lobe damage doesn't always impact IQ;
• Traumatic brain injury doesn't always impact IQ;
• The right testing to measure cognitive deficits.

CONTACT INFO FOR DR. LIDSKY: 732-580-6157 | [email protected]

LINKS:

A deep dive into Hamm v. Smith on Scotus Blog:

https://www.scotusblog.com/2025/12/hamm-v-smith-and-the-future-of-capital-punishment/

Other Set for Sentencing Ep. with Dr. Ted Lidsky: Ep. 81: A Child's Poison

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 governor to spare his life.

Act now to save him!

Contact Governor Kay Ivey and make your voice heard -- 334-242-7100

Instagram: @governorkayivey

go to www.charlessonnyburton.com to sign a petition.

Here's a compelling new NBC News report on Sonny:

Alabama set to execute man who didn't kill anyone

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