As a Class E non-violent felony, conviction for the crime of Falsifying Business Records in the First Degree is subject to a range of punishment, from probation to a term of imprisonment, the maximum of which is an indeterminate sentence of 1 1/3 to 4 years.
Within the sentencing parameters, there are many variations, such as a split sentence involving part incarceration and the balance probation, and conditions such as home or weekend detention, curfews and ankle monitors.
Then there are the considerations of the defendant’s circunstances. This is a first-offender, even though he lost a civil action where the judge said that his conduct amounted to what would be commonly called rape, even if it failed to meet the New York definition which is limited to penis, rather than digit, in vagina.
The defendant was found guilty on 34 counts of the indictment, though the indictment was one continuing course of conduct broken up into many smaller counts by “smurfing” the conduct, breaking it into its smallest constituent pieces. The defendant was also held in criminal contempt 10 times, suggesting that he is not inclined to abide the law or the order of a court.
The defendant is 77 years old, generally considered past his criminal years and potentially unable to survive the rigors of prison. Then again, he is the same 77 years of age and believes himself in sufficiently good health to be president.
It appears almost certain that the defendant will express neither remorse nor contrition at sentencing. Indeed, he is likely to use his opportunity to address the judge to harangue him with accusations of corruption and bias. Even if he stands mute, his attacks on the judge and legal system outside the courtroom will still echo.
And, it must be noted, the defendant is a former president and the presumptive nominee of a major party and potential future president. Like it or not, that is one of the defendant’s circumstances to be considered. What to do with his Secret Service detail? What of campaiging to regain the White House? What of its implications for the nation’s perception of the criminal justice system, even if it’s wrong?
At the New York Times, Norm Eisen and Judge Nancy Gertner pitch their respective positions on sentencing. Eisen takes the “lock him up” emotional position.
Finally, sentencing is about not only accountability but also deterrence. A prison sentence would send a message to Mr. Trump and his followers that you cannot get away with conspiracies to interfere with an election. Because we know that Mr. Trump faces charges related to attempted election interference in 2020 — the election he still claims he won — and is once more seeking the presidency, a criminal sentence, and the deterrence it may bring, is singularly important to justice and as an alarm bell to the American people.
Retired Judge and current Harvard Prawf Nancy Gertner takes a more reasoned approach.
But the bottom line is this: The factors pointing to imprisonment are outweighed by Mr. Trump’s unique position. Justice Merchan pulled his punches in imposing fines, not detention, for Mr. Trump’s repeated violations of his court orders. Anyone else would have been jailed. Mr. Trump no doubt will be treated differently — that is, less harshly — than other criminal defendants in our extraordinarily punitive criminal legal system. But we shouldn’t equalize the treatment of defendants by ramping up everyone’s punishment. Our criminal legal system is far too retributive and leans too heavily on imprisonment, no matter what the crime. Besides, Mr. Trump is different, because he was president and could become president again.
What’s the right answer, prison, probation or something in between? More importantly, why?
*Tuesday Talk rules apply. within reason.
I don’t know if it works like this, but if I were in the Judge’s shoes, I would say “Mr Trump, you’ve been found guilty by a jury of your peers. Explain to me why you shouldn’t be in jail. Don’t protest your innocence. Explain why you don’t deserve jail.”
He might be respectful and thoughtful in his response, about his age, about the nature of the crimes, about the lack of prior convictions.
Or he might be an obnoxious, pompous jerk.
Or perhaps he might do something else.
I would make my decision based on his response.
One day (a la federal court, one hour in the Marshal’s lockup) and one dollar. Seriously. Call it a judicial equivalent to President Ford’s pardon. And move on. This is an old, trivial matter. Why give it more than that now? Were I defending Tom the trucker in such a matter, my approach would be the same. And to those who say, but federal election interference, I say, no way to know. But let’s move on and get 45 off this tired stage.
I think it doesn’t matter. The pundits are unanimous that prison can’t happen before the new year due to the slow process of the appellate courts. If he wins the election, it will be impossible to put him in jail (though it might be fun to lock him up for the month of February). If he loses, he is looking at three Federal trials which need his attendance, and for which incarceration seems much more likely.
Apologies for breaking protocol, Admiral.
[Ed. Note: Links permitted under TT rules.]
Several commentators have opined that a wave of republican prosecutors are going to go after “ political” enemies much the same as they see this as a political prosecution.
So whatever y’all think remember that Trumps sentence might be a template of sorts among other things….
On a personal note I was once threatened with 3days in jail for dwls… scared the hell out of me.
Twofer Tuesday
In favor of prison:
Sleeping during trial – Very light weight
Repeated violations of gag order, suggesting non-compliance with probationary sentences – Great weight
Crime of dishonesty – Light weight
There are no similarly situated criminal defendants, because none have tried to influence an election via fraud – Great weight
Central Park Five member Raymond Santana would love to see Trump go to prison – Zero weight
Perceptions of two-tiered justice system, one for the rich, and one for the poor – Light weight
In favor of probation:
Similarly situated NY fraud criminal defendants usually receive no incarceration – Moderate weight
The carceral state is excessively punitive – Light weight
Other pending charges in other places – Zero weight
Civil liability in defamation cases – Zero weight
Impeachments – Zero weight
First time offender, in terms of criminal felony convictions – Moderate weight
He could be president again – Zero weight
Smurfing the charges – Light weight
“A good compromise leaves everyone mad.” – Calvin (Calvin and Hobbes)
https://www.gocomics.com/calvinandhobbes/1993/05/01
Result: Give him the maximum legal sentence. Serve one year as prison time, and the balance (three years) as probation. When the liberals complain, point to the prison time. When the conservatives complain, point to the greater probationary term, and say “As long as he complies with the law, there should be no issue.”
His probation officer will need serious vetting of course.
How can one influence an election via actions taken after the election has been completed?
“There are no similarly situated criminal defendants, because none have tried to influence an election via fraud – Great weight”
The fact that he committed fraud should have weight. The fact that it was done to conceal something from the voting public should be irrelevant as far as the sentencing goes. From my understanding, if he had paid her directly from his personal funds for the NDA, it would likely have been ruled as legal.
“‘A prison sentence would send a message to Mr. Trump and his followers that you cannot get away with conspiracies to interfere with an election'”
Serious “can’t fight in the war room” vibes here.
The partisan incentives are for the system to produce the outcome that will generate the most domestic turmoil.
Why would deterrence be relevant? Deter him from bombastic statements? Deter him from being a candidate? Or deter him from the crime of being the primary executive of a firm with an accounting department that uses sloppy bookkeeping practices (to his advantage)? Assigning prison time as “an alarm bell to the American people” has got to be one of the most useless ideas floating around in the great septic tanks of commentary about this historic event.
Deter who? Didn’t the governor feel the need to say the prosecutions at Trump were one offs and the wider world need not worry? Are there now reasons for the wider world to worry? Wouldn’t that hasten the flight from New York as a power center?
As much as I detest Trump, this is not a conviction which should end in prison time.
Not only is this case fundamentally for less serious conduct any way you shake it; not only does the whole case smack of a political prosecution (as explained by SHG and others) but it’s not the RIGHT case to put him in prison.
There are three cases against Trump. Two of them are for much more serious issues. If he is convicted on THOSE cases, he should go to prison. But sending him to prison for improper record-keeping? And doing so in NY, which is happy to let actual violent offenders go around to re-offend? No way, no how.
I sure hope he stays out of jail. Otherwise the next Republican majority is going to end badly.
“And, it must be noted, the defendant is a former president and the presumptive nominee of a major party and potential future president. Like it or not, that is one of the defendant’s circumstances to be considered. What to do with his Secret Service detail? What of campaiging to regain the White House?”
I have to disagree with our host on this point he made.
Not a lawyer, so someone help me out here. Where in the legal system does it matter what your day job is, or what new job I’m trying to get? Is it just public service jobs that get taken into account? Fed, state, local. How about running for school board or dog catcher?
Why stop at running for public office. Maybe we should give the CEO of Bank of America a break because he is a busy and important guy.
That said, I would suggest 30 days behind bars and then 1 year probation with all the normal terms of anyone else on probation. No travel out of state unless approved, weekly drug tests, etc.
Trump isn’t going to jail for two reasons:
1. It’s not practical. The Secret Service won’t agree to be locked in a cell, nor to leave him unguarded. Theoretically he could be sentenced to home detention, but he will never see the inside of a jail unless he goes there to visit one of his rapper friends.
2. Trump is in the club. Neither Trump, nor Biden, nor the Clintons, nor any other club member, will ever suffer any consequences for anything that they do.
Theoretically he could be sentenced to home detention, but…”. Trump said that if he were sentenced to house arrest, “Im not sure the public would stand for it”.
By “the public”, I presume he means Melania and Barron.
I would argue that one of the reasons we got a President Trump in the first place is the fact that President Nixon was pardoned, while most everyone else who aided and abetted President Nixon’s malfeasance was punished. I understand President Ford’s reasons for pardoning President Nixon, and I think President Ford’s heart was in the right place, however I thought President Ford made a poor decision at the time, and I still think so.
Enough. Punish President Trump, to the fullest extent of the law. Make an example of him.
Jeff Tyler
The example being, apparently, that if you’re running for office and pay hush money to a porn star, be sure to record it correctly, the year after you win.