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 indignities, deprivations, and unfathomable risks to their physical and mental well-being.

Judges need to understand the truth about the dysfunction and chaos inside the walls of the BOP and consider alternatives to incarceration, particularly when it comes to non-violent, first time offenders.

Helping us get set for sentencing, our 2nd conversationwith Bilal Khan. He's a current inmate in the federal BOP and he is not afraid to speak his truth about what life is like on the inside.

IN THIS EPISODE:

• Deprivation, indifference, even DEATH inside the walls of the federal BOP;
• Understaffing and Staff morale;
• Lack of accountability for staff and inmates;
• Safety and security issues, violence, sexual assaults;
• Contraband inside the walls of Ft. Dix;
• The myth of the "country club" environment of minimum security satellite camp facilities;
• The importance of filing administrative remedies and making a record;
• The importance of making sure all pertinent information goes into your client's Pre-Sentence Report;
• The importance of reaching out to your representatives (House and Senate) to demand action.

LINKS:

Don't take the inmate's word for how bad things are inside the walls of the BOP. Check out this recent episode we did with former BOP officials who confirm virtually every claim made by Mr. Khan: BOP stands for Big Ol' Problems, With Maureen Baird, Janet Perdue and Walt Pavlo at prisonology:

https://setforsentencing.com/podcast/bop-stands-for-big-ol-problems-exposing-dysfunction-danger-at-the-federal-bureau-of-prisons/

Also, this is Mr. Khan's 2nd appearance on Set for Sentencing. He recently authored the Book "Surviving Pretrial", available now on Amazon. Here's the link to our last conversation, and a link to purchase his book:

https://setforsentencing.com/podcast/surviving-pretrial-vol-1-is-my-lawyer-any-good/

SURVIVING PRETRIAL, by BILAL KHAN, ON AMAZON: https://a.co/d/9ZhE9h5

By total coincidence, this compelling and comprehensive NPR article came out right before this podcast episode dropped - it documents the high rate of DEATHS in the federal BOP due to failure to render prompt medical care, short staffing, and other issues:

https://www.npr.org/2023/09/23/1200626103/federal-prison-deaths-butner-medical-center-sick-inmates

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 Howell is exactly that guy. Park is a brand storytelling strategist and keynote speaker. He is the creator of the Business of Story Podcast, recently ranked the #1 business podcast in the world by Feedspot. He is the co-author of the Narrative Gym for Business (a companion book to my Narrative Gym For Law) among other great works.

In this episode, Park brings his business/marketing storytelling acumen to make narrative concepts relevant and real to our legal community. And, perhaps most fun, the two of us of spend a lot of time geeking out on what we can learn from our favorite (and not so favorite) movies and TV shows!

IN THIS EPISODE:

• How to focus on the true hero of your criminal defense story;
• Great examples from the marketing/business world lawyers and clients can apply in their persuasive advocacy;
• The "And, But, Therefore" narrative framework;
• The beating heart of narrative: "find the hurt, amplify the pain, heal the wound" – what it means and how to do it;
• The importance of injecting emotion into your narrative;
• The power of the word "because";
• A whole lot of fun examples from movies and television to elucidate the concept of "find the hurt, amplify the pain, heal the wound"
• The value of "finding your tornado" – the thing that throws your whole story into motion (another expression of the "BUT" statement of the ABT);
• A little bit of the big man, Joseph Campbell, because no discussion of narrative is complete without it;
• A word about the lawyer show "Suits", cause you know, that seems to be what everyone's watching these days.

LINKS:

The Business of Story Website: www.businessofstory.com

The Business of Story Podcast: www.businessofstory.com/storytelling-podcast/

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 is for those who have resources to engage private counsel to fight this fight, or for those who may need help from the Federal Public Defender.

Either way, change is coming, and we must be ready.

IN THIS EPISODE:

PART ONE: MARK ALLENBAUGH

• Overview of the "ZIPPO", or ZERO POINT OFFENDER guideline amendment;
• Overview of the "status points" adjustment changes;
• Retroactivity and the February 1, 2024 target date;
• DO NOT WAIT until 11/1 to ask for these 2 levels off or, consider asking for a continuance until the amendment goes into effect!
• Using compassionate release motions to effectuate the change on the grounds that if you are immediately eligible for release, you shouldn't have to wait until February 1, 2024;
• Covid is still a thing, and why it matters to Zippo motions;
• What to do if your sentencing is set before the changes take effect (11/1/23).

PART TWO: KEITH HILZENDEGER, ASST. FEDERAL PUBLIC DEFENDER

Advice for clients who cannot afford to hire counsel to deal with Zippo/Status Point changes.

LINKS:

For an overview of the Zero Point Offender (ZIPPO) amendment, check out episode, ___ where we go into all the basics.

https://setforsentencing.com/podcast/zippo/

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 BOP even at a minimum security or a "camp."

That is because the BOP is bloody mess. It is plagued by staffing shortages, lack of meaningful mental and physical care, corruption, violence, drugs and alcohol, and crumbling infrastructure.

Therefore, if the system is truly concerned with rehabilitation and not just retribution, then Judges must consider with far more frequency, alternatives to incarceration that can still satisfy the goals of sentencing.

Helping us get for sentencing is the staff of Prisonology, it's head, Walter Pavlo (writer for Forbes), and former BOP officials, Maureen Baird and Jan Perdue. These folks are credible voices who know the system inside and out.

IN THIS EPISODE:

• Staffing shortages, including missing or incompetent medical and mental health staff;
• Change in culture at the BOP from professionalism to chaos;
• Lack of programming;
• First Step Act issues;
• Staff corruption issues;
• Lack of adequate staff training;
• Lack of adequate inmate orientation;
• Some camp horror stories;
• Attorney's need to get knowledgeable BOP experts to help make these sentencing arguments;
• Culture of silence: Retaliation against staff and inmates for speaking out;
• Suicide – the leading cause of death at BOP;
• Infrastructure problems in so many aging BOP facilities;
• Alternatives to incarceration – giving the judge other options besides prison.

LINKS:

www.prisonology.com

EP. 18 – "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/

EP. 3: "Telling the Story of Prison with Maureen Baird"

https://setforsentencing.com/podcast/telling-the-story-of-prison-at-sentencing/

Walt Pavlo's recent Forbes Article: "The Unnecessary Risk of Incarcerating Minimum Security Inmates"

https://www.forbes.com/sites/walterpavlo/2023/06/28/the-unnecessary-risk-of-incarcerating-minimum-security-inmates/?sh=3632fe3f5353

Recent relevant post on Prof. Doug Berman's Blog: Extraordinary punishment: Conditions of Confinement and Compassionate release:

https://sentencing.typepad.com/sentencing_law_and_policy/2023/08/extraordinary-punishment-conditions-of-confinement-and-compassionate-release.html

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 facilities are often worse than the prisons where a client may end up serving their actual sentence. The deprivations and danger are prevalent, and the ability to defend themselves and provide meaningful assistance to their lawyer is therefore far more difficult.

It's time to rethink pre-trial detention in the federal system.

IN THIS EPISODE:

• Burden of proof in a detention hearing;
• How prosecutors use pre-trial detetion as leverage in plea bargaining;
• Statistics concerning frequency of government's motions to revoke bond;
• Pre-trial revocation through the lens of the Sam Bankman Fried case;
• Revocation statistics for those charged with witness tampering, especially in DC;
• Distinguishing between SBF's conduct and Trump's conduct and asking why Trump continues to avoid the consequence of Pre-Trial Release;
• Judge's Chutkin's potentially "hollow threat" of expediting trial as a consequence of pre-trial release violations.

Links:

www.dougpassonlaw.com

www.sentencingstats.com

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 this constitutionally offensive practice, but punted to the sentencing commission. They currently have no plans to address it, so reach out to them and tell them to do it!

Today, though, the most spirited debate focused on the distiction between "acquitted conduct" and "relevant" or "uncharged" conduct.

If you're not a lawyer, this bare-knuckle brawl between two legal giants and the 5th and 6th Amendments may be a pass for you. Or maybe you'll love it just because of all the screaming.

All I know, is 1) the debate is really important 2) I love spending time with these gentlemen, and 3) you need to reach out to the sentencing commission to get them to settle this shit once and for all.

Ding, Ding.

IN THIS EPISODE:

• Whether a client should have right to demand that a JURY make the determination as to whether certain sentence enhancements apply;
• Whether the burden of proof should be beyond a reasonable doubt for sentencing enhancements;
• Whether there is any meaningful constitutional distinction, between acquitted and uncharged conduct;
• Whether statutory ranges are too broad, allowing punishment to be untethered to counts of conviction;
• What can we do about all of it?

RELATED EPISODES & LINKS:

Mark Allenbaugh & Alan Ellis - LAW 360 Article: Supreme Court Must End Acquitted Conduct Sentencing, July 19, 2023.

Contact the Sentencing Commission!

https://www.ussc.gov/

Ep. 36: Presumed Guilty: Using Acquitted Conduct at Sentencing:

https://setforsentencing.com/podcast/acquitted-conduct/

Berman's Sentencing Law and Policy Blog:

https://sentencing.typepad.com/sentencing_law_and_policy/

Mark Allenbaugh: www.sentencingstats.com

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 ass episode) about a plea, when this is a sentencing podcast? Quite simply, because, if you don't already know, the plea agreement is the FIRST SENTENCING!! The prosecutor has far too much discretion and power about what to charge, and what kind of plea to offer. Yes, it's a negotiation, but prison (and draconian guidelines) can lead to leviathan leverage. The terms you negotiate (or capitulate to) in a plea agreement can and will seal your fate on the big day.

But too many defense lawyers bend over and recommend shitty pleas with inartfully drafted language. This case appears to be a prime example.

IN THIS EPISODE:

• Why Lawyers are like Tequila;
• Why a plea agreement is the "first sentencing";
• The makeup of the Delware District court and Judge's background;
• The difference between A, B, and C pleas in federal court;
• Why lawyers should be willing to plead "open" if the AUSA refuses to make an offer with stipulated sentencing provisions;
• When pleading "straight up" could come back to bite you;
• Why Hunter's plea went off the rails;
• Speculation as to why the parties insisted on making Judge Norieka the "breach referee";
• A full throated debate about whether the judge right or wrong about her separation of powers concern;
• How this mess could have been avoided;
• Why the many ways the lawyering on both sides was woefully deficient;
• Oh yeah, and some boring shit about tax loss issues under the United States Sentencing Guidelines (sorry Mark).

LINKS:

Mark Allenbaugh: www.sentencingstats.com

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.

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 into an amazing new resource, a 500 page book called, Surviving Pretrial: The Ultimate Guide to Being Busted & Prosecuted by the Feds.

This book is not just for those charged with federal crimes. It's for those with state cases, and perhaps more important, it's for lawyers who want to see the world through their clients' eyes.

Not only that, but this work is a testament to resilliance and redemption. Although Mr. Khan made serious mistakes that resulted in his incarceration, his life didn't end there. He started a new chapter by authoring this work and by helping others navigate this complicated, terrifying and often unfair system.

Mr. Khan helps us get set for sentencing via 15-minute increment phone calls from inside a federal institution. Our conversation focused mostly on the crucial task of making sure you have the right represenation. Hopefully, he'll be back to talk about other topics in the near future.

IN THIS EPISODE:

• The origin story of Surviving Pretrial
• A glimpse of life inside a federal prison
• How to properly vet/question your lawyer
• Using data to vet your lawyer
• How are lawyers like tequila?

LINK:

SURVIVING PRETRIAL ON AMAZON: https://a.co/d/9ZhE9h5

I believe that NOTHING IN THE LAW MAKES SENSE EXCEPT IN LIGHT OF EMPATHY. This is especially true when it comes to sentencing. A lawyer's ability to understand and connect with a client is essential to their practice.

But it's not an easy concept to understand, it's not always easy to put into practice, and it's even harder to get decision-makers to feel empathy for those that have done something wrong.

This episode is "one from the vault," but it was too good and too important not to share. I recorded this literally six years ago, when the podcast was still a million miles away from becoming reality. Audio's a little rough, but hopefully you'll be ok.

Dr. Elizabeth Segal is a Ph.D., a social worker, and a professor at Arizona State University. She is the author of the book "Social Empathy", released in 2018. I was so grateful to be able to spend some time with Dr. Segal to talk all about empathy - what it is, why it matters, and what it can mean to clients who navigate our dehumanizing legal system.

LINKS:

Dr. Segel's book, "Social Empathy" is available at Amazon at this link: https://a.co/d/0bBDANM