4 ms·

At no point during the process of sentencing calculation does the idea of "let's add up all of the charges and their combined sentences" get applied. That's no

At no point during the process of sentencing calculation does the idea of "let's add up all of the charges and their combined sentences" get applied. That's not how federal sentencing guidelines work, is the point. It can still be a Very Long Time (Ken White calls this the "life plus cancer" treatment), but that number isn't arrived at as described by the submitted article. From the article I linked (emphasis mine): > First, the core of the Post’s article is a splashy infographic meant to act as Resistance porn. It adds up, on a Candyland-style path, the maximum sentence on each count in the New York state indictment against Trump, the Florida federal indictment for wrongfully retaining documents, and the new Washington D.C. indictment for his January 6 fraud. The infographic is plainly the beating clickbait heart of the piece. It’s also completely useless. The combined maximum sentences from the three cases is a meaningless, masturbatory number. It has nothing to do with what federal sentences he faces, as I note above, and New York criminal law experts (and I am not one) say that the maximum sentences in that case have nothing to do with the plausible sentence he faces there.

dragonwriter 3y ago
> At no point during the process of sentencing calculation does the idea of "let's add up all of the charges and their combined sentences" get applied. That's both, in the general case, technically true (the processes isn't adding up all the statutory maxima at one point) and substantively false (as for each charge, the sentence is clamped to the statutory range, and thus the sum of the statutory ranges is the actual legal maximum that can be applied, even though at no point in the sentencing calculation are the statutory maxima summed to get to the actual sentence; the actual sentences that are scheduled to run consecutively, which are already clamped to the statutory range, are summed.) Moreover, its particularly wrong, IIRC, and if the various changes to the charges haven't changed this, in SBF's case, because working through the facts in the indictment at least originally against the guidelines calculations for each charge very plausibly reached a guidelines range at or beyond the statutory maximum. > That's not how federal sentencing guidelines work, Federal sentencing guidelines are not mandatory, and federal courts can make departures within the range between the statutory minimum and statutory maximum above or below the guideline sentence. They are, to borrow from Pirates of the Carribean, more what you'd call guidelines than actual rules. Moreover, clamping sentence for each charge to the statutory range is exactly how the guidelines work. Yes, it would be very useful (though highly subjective; even when departures aren't ultimately involved, whether conditions in the guidelines are applicable based on the jury verdict and the evidence at trial is the domain of often extensive post-verdict litigation that can amount to a mini-bench-trial on the guidelines; jounralists predicting the outcome of such would be getting in to highly speculative and error-prone rather than fact-based reporting) for coverage of federal criminal trials to present useful context around how the guidelines might apply based on the facts alleged in the indictment. Popehat's repeated banging on the point that the reporting by the media of statutory ranges is generally useless for any real purpose is accurate and something that adds to the knowledge of someone who encounters it who has no pre-existing knowledge of how federal sentencing works. And for people who get the oversimplified idea from it that "adding up the sum of the statutory maxima never tells you what the realistic outer limit is for sentence in federal criminal cases, it is always significantly lower" will probably, for most cases they see reported in the media, mostly not have the wrong idea, even if they are working from a rule that is almost as oversimplified as "the sum of the federal statutory maxima is a realistic, if guaranteed to not be low, sentence estimate in federal criminal cases in general". But several facts remain true: 1. The sum of the statutory maxima is the actual legal maximum total sentence, and 2. There are cases where that will ultimately set the maximum sentence under the guidelines, because the pre-clamping guidelines range for each conviction will exceed the statutory maximum, 3. There are cases where the actual sentence will exceed the guidelines sentence, and the maximum there will still be that set by the statutory limits on each offense. To actually assess the likely range of federal sentences for a given indictment, you would need to review the indictment, the guidelines, and try to assess each of the potential guidelines factors against the allegations in the indictment (both the full set of facts alleged and the set of alleged facts that would allow conviction on each charge but produce the minimum guidelines range), and then compute what the actual sentence would be for the various possibilities under the guidelines, and then be familiar with the history of similar federal cases (especially in the same trial court and judge) and whether and in what circumstances departures from the guidelines ranges have been given, and assess that. All of which often gets into highly subjective, highly contentious, opinion, even when experts are involved. OTOH, you can not purport to report a likely sentence, and then report a maximum sentence, and you will be reporting a verifiable, clear legal fact, even if arguably one of often limited usefulness in predicting what people might like to predict.
- WendyTheWillow 3y ago
  1 is false based on the article I linked, and 2 and 3 are irrelevant. I am going to trust a former federal prosecutor and current federal criminal defense attorney over dragonwriter of HN on topics related to federal sentencing guidelines.

dragonwriter 3y ago

> At no point during the process of sentencing calculation does the idea of "let's add up all of the charges and their combined sentences" get applied. That's both, in the general case, technically true (the processes isn't adding up all the statutory maxima at one point) and substantively false (as for each charge, the sentence is clamped to the statutory range, and thus the sum of the statutory ranges is the actual legal maximum that can be applied, even though at no point in the sentencing calculation are the statutory maxima summed to get to the actual sentence; the actual sentences that are scheduled to run consecutively, which are already clamped to the statutory range, are summed.) Moreover, its particularly wrong, IIRC, and if the various changes to the charges haven't changed this, in SBF's case, because working through the facts in the indictment at least originally against the guidelines calculations for each charge very plausibly reached a guidelines range at or beyond the statutory maximum. > That's not how federal sentencing guidelines work, Federal sentencing guidelines are not mandatory, and federal courts can make departures within the range between the statutory minimum and statutory maximum above or below the guideline sentence. They are, to borrow from Pirates of the Carribean, more what you'd call guidelines than actual rules. Moreover, clamping sentence for each charge to the statutory range is exactly how the guidelines work. Yes, it would be very useful (though highly subjective; even when departures aren't ultimately involved, whether conditions in the guidelines are applicable based on the jury verdict and the evidence at trial is the domain of often extensive post-verdict litigation that can amount to a mini-bench-trial on the guidelines; jounralists predicting the outcome of such would be getting in to highly speculative and error-prone rather than fact-based reporting) for coverage of federal criminal trials to present useful context around how the guidelines might apply based on the facts alleged in the indictment. Popehat's repeated banging on the point that the reporting by the media of statutory ranges is generally useless for any real purpose is accurate and something that adds to the knowledge of someone who encounters it who has no pre-existing knowledge of how federal sentencing works. And for people who get the oversimplified idea from it that "adding up the sum of the statutory maxima never tells you what the realistic outer limit is for sentence in federal criminal cases, it is always significantly lower" will probably, for most cases they see reported in the media, mostly not have the wrong idea, even if they are working from a rule that is almost as oversimplified as "the sum of the federal statutory maxima is a realistic, if guaranteed to not be low, sentence estimate in federal criminal cases in general". But several facts remain true: 1. The sum of the statutory maxima is the actual legal maximum total sentence, and 2. There are cases where that will ultimately set the maximum sentence under the guidelines, because the pre-clamping guidelines range for each conviction will exceed the statutory maximum, 3. There are cases where the actual sentence will exceed the guidelines sentence, and the maximum there will still be that set by the statutory limits on each offense. To actually assess the likely range of federal sentences for a given indictment, you would need to review the indictment, the guidelines, and try to assess each of the potential guidelines factors against the allegations in the indictment (both the full set of facts alleged and the set of alleged facts that would allow conviction on each charge but produce the minimum guidelines range), and then compute what the actual sentence would be for the various possibilities under the guidelines, and then be familiar with the history of similar federal cases (especially in the same trial court and judge) and whether and in what circumstances departures from the guidelines ranges have been given, and assess that. All of which often gets into highly subjective, highly contentious, opinion, even when experts are involved. OTOH, you can not purport to report a likely sentence, and then report a maximum sentence, and you will be reporting a verifiable, clear legal fact, even if arguably one of often limited usefulness in predicting what people might like to predict.

WendyTheWillow 3y ago
1 is false based on the article I linked, and 2 and 3 are irrelevant. I am going to trust a former federal prosecutor and current federal criminal defense attorney over dragonwriter of HN on topics related to federal sentencing guidelines.