I am not an expert on New York sentencing law and practice, though I expect a whole lot of folks will soon be opining on these topics now that former President Donald Trump has been convicted by a jury on 34 New York felony counts. This CBS News piece seems to review some sentencing basics pretty well:
Trump was convicted by the jury Thursday on 34 felony counts for falsifying business records to conceal a $130,000 payment to adult film star Stormy Daniels to buy her silence before the 2016 presidential election. The jury in Manhattan returned a guilty verdict after a trial that stretched six weeks and featured more than 20 witnesses.
Each of the 34 felony charges carries up to a $5,000 fine and four-year prison sentence. But whether Trump will go to prison is another question — one that’s up to the judge at sentencing. The judge set a July 11 date for sentencing following the jury’s verdict on Thursday.
The timing is in line with similar white-collar felony cases, where sentencing often takes place anywhere from three to eight weeks after conviction, according to Dan Horwitz, a defense lawyer who formerly prosecuted white-collar cases for the Manhattan District Attorney’s office. The sentencing will happen four days before the start of the Republican National Convention.
The minimum sentence for falsifying business records in the first degree is zero, so Trump could receive probation or conditional discharge, a sentence of no jail or up to four years for each offense. Trump would likely be ordered to serve the prison time concurrently for each count, so up to four years, total.
“The judge could sentence him to anything between zero and the max,” Horwitz said. “So he could sentence him to a period of months in jail, he could sentence him to a period of weeks in jail, he could sentence him to a sentence where he is required, for example, to go to jail every weekend for a period of time and then serve the rest of the sentence on probation.”
In an analysis of comparable cases brought by the Manhattan district attorney’s office, Norm Eisen, who has written a book about Trump’s 2020 election-related federal indictment and served as special counsel in the first impeachment of the former president, found that about 10% resulted in imprisonment. But the circumstances surrounding the case make any across-the-board comparison difficult.
Trump could also be sentenced to home detention, where he would wear an ankle bracelet and be monitored rather than going to jail. Horwitz suggested that a home detention sentence, which walks a middle ground between no punishment and a stint in state prison, might be the most likely outcome. It would also satisfy Trump’s unusual security and political situation.
A home detention sentence would also make it possible for Trump to continue campaigning — albeit virtually — with the ability to hold news conferences and remain active on social media….
There are a number of factors that the court can take into consideration for sentencing, including the nature and extent of the conduct, who was hurt, whether there are victims, and acceptance of responsibility, Horwitz said. Trump has repeatedly denied any guilt in the case….
A defendant’s conduct during the trial may also play a role, so Trump’s repeated violation of Merchan’s gag order may be a significant factor in his sentencing. During the trial, Trump was accused over a dozen times of violating a gag order preventing him from making public comments about likely witnesses, jurors, attorneys and court staff involved in the case.
Whatever Trump’s formal sentence, he is certain to endure any number of formal and informal collateral consequences as a result of his convictions. This Politico article flags an interesting one in its headline: “There’s a real possibility Trump can’t vote in November.”
Though I suspect lots of folks may be eager to discuss lots of issues beyond the specifics of Trump’s upcoming NY sentencing, I would be eager to hear as much discussion of sentencing law and practice as possible in the comments. I say that in part because there are so many interesting and intricate sentencing issues that arise in this historic and controversial case. For example, should state prosecutors assert that, and should Merchan consider, Trump’s other alleged criminal behaviors as detailed in three other pending criminal indictments are aggravating factors calling for a more severe sentence?