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

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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

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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

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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.