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Set For Sentencing: Daily Summaries Delivered
by Doug Passon
Over a million people a year will face sentencing. For a client and their loved ones, it will be the most important day of their lives. Unlike at trial, there is virtually no limit to the kind of information a lawyer can credibly present to advocate for their client and demonstrate their humanity at sentencing. My passion is helping lawyers and clients craft their most compelling sentencing narratives. So, I was inspired to create this podcast drawing on my 25+ years of criminal defense experience, my passion for storytelling, my expertise in producing mitigation videos, and my years spent consulting and developing compelling case narratives that get real results. In Set for Sentencing, I present cutting edge resources, world-class experts, and the straight scoop on our often dysfunctional system -- all in service to one goal -- to bring more justice, more humanity, and more hope to the sentencing process.
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- 1 weeks ago44 min
The Process is the Punishment: Hannah Dugan Sentencing Post-Mortem
Ideally, every sentence serves to promote respect for the law. But in an age of the most lawless DOJ in American history – respect for the law is a dead letter. The sentencing of Judge Hannah Dugan is the most recent example of a how a weaponized DOJ is built for retribution, not justice. Doug Passon and sentencing stats expert Mark Allenbaugh conduct one of their famous "sentencing post-mortems", dissecting every aspect of Judge Dugan's sentencing. She avoided a prison cell, but her life is forever changed. The question that should be hanging over every judge in the country right now: who's next to get "Hannah Duganed"? In This Episode: 02:39 – The recap: convicted of obstruction, acquitted of harboring, hit with a $5,000 fine; 04:11 – Why "no prison" doesn't mean the DOJ lost — the process was the punishment; 07:47 – Grading the sentencing memos; 08:18 – The government's fuzzy guideline math and the mysterious Interactive Data Analyzer 34:01 – The BOP designation bullet Judge Dugan dodged 38:01 – The Passon Slap!? (Move over Will Smith). LINK: Original Dugan Pod: For My Enemies, the Law - Set for Sentencing by Doug Passon Law
- 3 weeks ago51 min
The Fate of John Bolton: Trump Doesn't Just Pick Who's Prosecuted — Now He Picks Your Prison, Too
Ambassador John Bolton pled guilty last week to mishandling classified information, and the plea includes a stipulation that if he receives prison, the term is no more than five years. On paper, this agreement reads like a win. But the plea isn't the paper that matters most, because the same week Bolton signed his plea, Acting U.S. Attorney Todd Blanche quietly issued a policy formalizing something no DOJ has ever done: proclaimed express authority to override the Bureau of Prisons and personally decide where an inmate will serve their sentence. Therefore, the wall between prosecution and punishment is now officially obliterated. Trump doesn't just decide who gets charged. Now, through Todd Blanche, he decides where you rot. Only the sentencing judge has the power to save him from this possible fate, by imposing a non-custodial sentence. The only question now is -- will he do it? IN THIS EPISODE: Why Biden's DOJ had four years to prosecute Bolton and didn't; Compare and contrast Trumps (alleged) crimes and Bolton's; Grading Bolton's plea agreement; Introducing Todd Blanche's new BOP designation change notice; Why the order could result in "pay for play" like the pardon and clemency process; Connecting the order to Ghislaine Maxwell's camp placement; The one sentencing move that could shield a defendant from vindictive BOP placement; Reading Abbe Lowell's press release and Bolton's "service to country" framing – a good lesson in narrative structure LINK: RECENT CHANGE TO BOP PLACEMENT POLICY:
- Jun 22, 202658 min
Manifest Injustice: Hunter, Hemani, & Buh-Bye Blanche
🎙️ NEW EPISODE: The Supreme Court just moved the goalposts on federal sentencing — and the next AG fight starts now. If federal defendants could trust that pleading guilty meant a predictable outcome, then the system would actually function the way it's sold to them. ⚖️ But SCOTUS just complicated that bargain. In Hemani, the Court reined in prosecutions under the felon-drug-gun statute. In Hunter, it cracked open appeal waivers for the first time — ruling 8-1 that a waiver is unenforceable when it produces a "miscarriage of justice." Because for years, prosecutors have leaned on waivers as ironclad, and defense lawyers have had almost no recourse when judges get sentencing wrong after the deal is signed. Therefore this matters for every plea negotiation going forward — and it lands right as the fight over who runs DOJ heats up. Todd Blanche, Trump's former personal lawyer and current Acting AG, has his Senate confirmation hearing set for July 15-16. If you care about who's setting charging and sentencing policy nationwide, now's the moment to make some noise. 🔊 #FederalSentencing #SCOTUS #CriminalJustice #PleaBargain #SecondAmendment #AppealWaiver #ToddBlanche #DOJ #SentencingReform #SetForSentencing LINKS: Liz Oyer's Substack on Todd Blanche: It's Time for We the People to Take on Todd Blanche Set For Sentencing Podcasts on Hunter Biden: Ep. 57: "Diversion Perversion" https://youtu.be/cSo6Y-PF78s?si=GjXg8U3PcX4ZmSlM Ep. 64: Too Cute By Half: Why Hunter's Plea Went South: https://youtu.be/sWEzwKLQCoo?si=1Hl_oXIJoU9cgAh4 Ep. 92: (Livestream Bonus!) Hunter Biden Edition: https://www.youtube.com/live/B3VL-cJlXSo?si=Ga9WQ4N6h3clr3gb
- Jun 8, 20261h 15m
New Compassionate Release Cases: Is the Door to Freedom Shrinking?
With the First Step Act of 2018 came the great hope of expanded grounds and use of "Compassionate Release." Judges were offered the promise of wider discretion to give deserving clients a second look at sentencing. But, the Supreme Court just made compassionate release a whole lot harder to get, because in two back-to-back decisions — Fernandez and Rutherford — the Court slammed the door on two of the most frequently used grounds for eligibility. In this episode, Passon convenes two of the sharpest minds in federal sentencing — regular guest Mark Allenbaugh and returning star Prof. Doug Berman — for a deep-dive reaction. Together, we break down what each case actually holds, where the majority reasoning goes wrong, why the dissents matter, and — critically — what still works. Because even though it seems the door is shrinking--- it hasn't closed. If you litigate compassionate release, this episode is required listening! IN THIS EPISODE: History of compassionate release; Discussion of Fernandez; Advice for arguing around these two restrictive opinions; Discussion of Rutherford; How both opinions usurp the role of both Congress and the US Sentencing Commission; How two pending cases, Maxwell and Beaird, may impact future compassionate release cases LINKS: Sentencing Law and Policy – A new home for SL&P (Berman's Blog) A great substack where Prof. Berman frequently contributes: Sentencing Matters Substack | DAB | Substack On that note, here's a great SM Substack piece from today on this very issue: https://open.substack.com/pub/sentencing/p/textualism-in-name-policymaking-in?r=1f0z1k&utm_campaign=post&utm_medium=email Link to Judge Block's Book, A Second Chance: A Federal Judge Decides Who Deserves It, on Amazon: https://a.co/d/07xJD1zs Drugs on the Docket, Season 3: Excited for start to Season Three of "Drugs on the Docket" podcast | Sentencing Law and Policy Set for Sentencing is heading to Substack! We have not officially launched, but by all means, subscribe for future awesomeness coming down the pike: https://substack.com/@dougpassonlaw
- May 25, 20261h 5m
"8647": A New Low for Trump's DOJ
It's hard to understand how someone like James Comey could be indicted for posting a picture of seashells on a beach. But, just when it seems like we arrived at the full-on DOJ "low-tide", Todd Blanche and J.D. Vance roll out the new "weaponization fund". Will it ever be safe to go back in the water? In this episode of set for sentencing, Mark Allenbaugh and I tackle a number of subjects, with the Comey case being the centerpiece. There's something for everyone in this one, including: IN THIS EPISODE: 8:00 --- Pending supreme court cases that could have significant consequences on federal sentencing; 21:00-- What sentencing guideline amendments did and did NOT pass; 31:00 – The new James Comey "Seashell" indictment; 52:30 – My take on Cole Allen, the White House Correspondent's Dinner Shooting, and the implications of autism in his defense. OTHER LINKS: In a recent episode, I did a deep dive into the difference between intellectual functioning and other brain deficits with neuropsychologist, Dr. Ted Lidsky: Atkins & The IQ Fallacy: Why IQ is Not a Reliable Measure of Culpability (with Dr. Ted Lidsky) - Set for Sentencing by Doug Passon Law My practice includes a sub-specialty in "autism informed criminal defense." If you haven't seen my other podcasts and resources on this important, often misunderstood topic, please give it a look: Autism-Informed Criminal Defense - Doug Passon Law
- May 11, 202645 min
Negotiating Plea Agreements with Bite (Pt. II of "Straight Up No Chaser")
The decision whether to enter into a plea agreement with the government/state is the most important choice a client will make. But too many clients enter into bad pleas - ones that promise little and give up a lot. A client shouldn't have to settle for a plea that lacks real bite. Therefore, in Part II of our plea agreements bonanza, we go through, point by point, the elements of what makes a good plea. IN THIS EPISODE: Knowing the hallmarks of a "good" plea agreement; Knowing the long-term implications of rights you will be required to waive; The crucial difference between plea "stipulations" and plea "recommendations" Making sure your plea does not tie your hands on facts, arguments or mitigation you can present at sentencing; Bargaining for conditional appeal provisions; Bargaining away mandatory minimums; Pleading to an offense that substantially reduces potential statutory maximum; Keeping the door open for compassionate release and new challenges based on future changes to the guidelines or law ; The Hunter case, pending in the Supreme Court, that may make appeal waivers unconstitutional; And, now for something completely different, a recommendation for a powerful documentary ("Predators"). Here is a link to the trailer for the documentary, "Predators". This film takes a fresh look at the "To Catch a Predator" series, and asks hard questions about Hansen's motivations and methods, and how he ruined lives ruined for ratings. It does what criminal defense lawyers have to do every day, take a hugely reviled class of alleged offenders, and demonstrate that there is another side to the story.
- Apr 6, 202655 min
Pleading Straight Up, No Chaser! (Part I)
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!!!!
- Mar 23, 20261h 0m
Atkins & The IQ Fallacy: Why IQ is Not a Reliable Measure of Culpability (with Dr. Ted Lidsky)
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 | tlidsky@gmail.com 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
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About Set For Sentencing
Over a million people a year will face sentencing. For a client and their loved ones, it will be the most important day of their lives. Unlike at trial, there is virtually no limit to the kind of information a lawyer can credibly present to advocate for their client and demonstrate their humanity at sentencing. My passion is helping lawyers and clients craft their most compelling sentencing narratives. So, I was inspired to create this podcast drawing on my 25+ years of criminal defense experience, my passion for storytelling, my expertise in producing mitigation videos, and my years spent consulting and developing compelling case narratives that get real results. In Set for Sentencing, I present cutting edge resources, world-class experts, and the straight scoop on our often dysfunctional system -- all in service to one goal -- to bring more justice, more humanity, and more hope to the sentencing process.
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