I just turned 54 and I’ve grown used to things hurting — lots of things hurting — first thing in the morning.
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lots → turn → morning
However, I am unaccustomed to awakening only to be kicked right in the junk by the Washington Post before my morning coffee.
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I → awaken → coffee
I refer to an appallingly bad Washington Post column about the hypothetical sentence Donald Trump faces based on his (to date) three pending criminal cases.
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Trump → refer → cases
When I awoke on Friday, about two dozen gleeful people had sent it to me in some sort of cruel exercise of modern bearbaiting.
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people → awake → bearbaiting
How Federal Sentencing Actually Works
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Sentencing → work → ?
In our recent Very Special Episode of Serious Trouble about how to be an informed and critical consumer of legal news, Josh Barro and I spent a long time discussing one of the most important things the media gets badly wrong: it reports the statutory maximum sentences defendants face as if those numbers had anything to do with the actual sentences the defendants face.
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defendants → spend → sentences
They almost never do.
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They → do → ?
Adding up all the statutory maximum sentences for all the counts charged in an indictment is an exercise in clickbait disinformation.
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Adding → add → disinformation
I’ve been ranting about this for more than a decade but we are still here.
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we → rant → decade
Here’s how federal sentencing works.
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sentencing → work → ?
The United States Probation Office, with the input of the parties, proposes a recommended sentence calculated using the United States Sentencing Guidelines.
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Office → propose → Guidelines
The Guidelines are extremely complex; calculating a sentence under them can be comparable to filling out a business’ tax return.
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calculating → calculate → return
The parties can then object to the Probation Office’s calculations and make arguments to the court about whether and how the Probation Office got it wrong.
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it → object → court
Once the judge determines the Criminal History Category and Offense Level, he or she applies them to the Sentencing Table to generate a sentencing range in months:
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he → determine → months
In the old days, the resulting sentencing range was mandatory and bound the court; in 2005 the Supreme Court ruled that the Guidelines could only be treated as a recommendation, not a mandate.
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Guidelines → result → recommendation
So now federal judges treat the Guidelines sentence as a recommendation — a starting point — and sentencing defendants based on mandatory factors set forth in federal statutes.
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judges → treat → statutes
What’s the result?
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result → ’ → ?
In cases where a defendant has been convicted of multiple counts and the statutory maximum is high, the sentence is almost always far below the statutory maximum.
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sentence → convict → maximum
White collar criminals only get sentenced close to the statutory maximum when (1) they are only convicted of one or two counts with very low statutory maximum (say, one count of a crime with a five-year statutory maximum, as part of a plea bargain), or (2) cases involving truly extraordinary amounts of money.
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they → sentence → money
That’s why you repeatedly see white collar criminals being sentences to just a small fraction of the statutory maximum sentence they face.
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they → ’ → sentence
How The Washington Post Blew It
The Washington Post’s deeply irritating column is very nominally about telling you that actual sentences and maximum sentences are different, but it does it in a way almost certain to mislead and misinform, and provides no useful information of substance.
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it → blow → substance
First, the core of the Post’s article is a splashy infographic meant to act as Resistance porn.
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core → mean → 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.
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It → add → fraud
The infographic is plainly the beating clickbait heart of the piece.
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infographic → beat → piece
It’s also completely useless.
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It → ’ → ?
The combined maximum sentences from the three cases is a meaningless, masturbatory number.
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sentences → combine → cases
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.
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he → have → sentence
Second, when the Post gets around to contradicting its own splashy infographic, its effort is desultory.
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effort → get → infographic
The column says:
First of all, that figure depends upon his being convicted of each and every one of the 78 counts he has been charged with — meaning that prosecutors would have to bat a thousand in each venue.
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prosecutors → say → venue
Outside observers generally agree the Mar-a-Lago case is the strongest and the case in Manhattan much weaker.
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case → agree → Manhattan
Should District Attorney Alvin Bragg be unable to convict on his 34 counts, there’s a century-plus sliced off the total right there.
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Bragg → convict → total
That’s not the first reason the number is wrong at all.
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number → ’ → ?
The number of counts has very little impact on federal sentences (or, in this context, on New York sentences).
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number → have → sentences
Sentences are typically driven by what the Guidelines call relevant conduct — the universe of facts underlying the conviction.
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Guidelines → drive → conviction
Most of the time in white collar cases that universe is governed by the amount of money involved in the crime.
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universe → govern → crime
A defendant who is convicted of two counts of wire fraud and a defendant convicted of ten counts of wire fraud will get very similar sentences if both cases involve a million dollars in loss, for example.
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cases → convict → example
That’s certainly the case in New York — where the prosecution’s 34 counts of doing the same thing is performative and non-substantive — and in Florida, where Jack Smith’s charging 32 counts of wrongfully retaining documents is mostly performative and about making sure he can present all of those documents at trial, not about driving a sentence.
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he → ’ → sentence
The Post’s “first” point therefore misses the point.
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point → miss → point
But the Post isn’t done yet:
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Post → do → ?
Second, the total assumes that Trump would receive the maximum sentence for each guilty verdict.
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Trump → assume → verdict
…and 32 more, not listed.
