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What does the law say about Donald Trump’s sentence?

by | Jun 24, 2024 | Criminal Law |

Trials and sentencing are very different.

Trials are about whether the Government has proven beyond a reasonable doubt that a person has committed a crime.  The judge instructs the jury on the elements of the crime, and the jury determines whether the Government has proven each element.  President Trump was convicted by a New York State jury of 34 Class E felonies.

A Class E felony is a low-level (least serious type) felony— but it remains a felony— as compared to a misdemeanor.   A misdemeanor is a crime for which possible imprisonment is one year or less.  A felony is a crime for which possible imprisonment is one year and one day or greater.  A felony conviction carries stigma and shame that a misdemeanor does not.

It is legal to discriminate against hiring felons; it is typically not legal to do so in the case of those convicted of misdemeanors.

The New York State Legislature established the maximum possible sentence for the crime President Trump was convicted of at four years.  He was convicted 34 times.

Like other states, New York provides guidelines for judges to assist in their sentencing decisions.  Judges in New York routinely sentence first-offender Class E felons to probation rather than jail or prison.

Whereas decisions of innocence or guilt are not character assessments—- they are simply determinations of whether a person has done something — sentencing decisions are based on a variety of factors that include the behavior of the criminal defendant throughout the proceedings and across their life, and the social goals of sending someone to jail or prison.

Not surprisingly, the US judicial system favors lower sentences for people who “own” their bad behavior, and we reward acceptance of responsibility and contrition.  But President Trump has consistently challenged the legitimacy of prosecuting him—his right to do so as a political candidate and as a citizen is unquestioned.  But Judges in the United States routinely punish defendants who show contempt for the law or for the judge.  So, one challenge for Judge Merchan is to balance President Trump’s right to challenge the legitimacy of the law with the contempt and hostility, he has shown to the judge and prosecutor for simply doing their jobs.

A basic question the Judge faces is whether to sentence “concurrently” or “consecutively” — say the sentence is six months in jail —- a consecutive sentence would be six months times 34.  A concurrent sentence is they all run on the same dates.

Most commentators agree that a concurrent sentence is more likely because President Trump has no prior criminal record and because the felonies are low-level white-collar crimes.

Another factor Judge Merchan will look to is deterrence.  Judges look to the idea that they should sentence people just enough to punish them for the bad behavior but not more.   They seek to deter the defendant from committing any crimes in the future.  They also seek to deter other people from committing the same crime.

Finally, Judge Merchan will look at the life of President Trump and make a character assessment.  That is the essence of judging at sentencing. The Prosecutor will undoubtedly argue that President Trump’s convictions in this case are consistent with his character by his history of flouting the law and not respecting his legal obligations.  The Defense will argue that President Trump is a unique criminal defendant who deserves the most lenient treatment because of his prior achievements.

In short, we can expect most Americans to take sides based on their politics about what should happen to President Trump.  The judge can be expected to apply the factors discussed above to arrive at an outcome consistent with the law.