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March 15, 2024
Feds argue in sentencing memo that "legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment" for Sam Bankman-Fried
The federal court in the Southern District of New York is scheduled, in less than two week, to sentence Sam Bankman-Fried following his trial conviction on multiple fraud charnges. A few weeks ago, as noted here, SBF's lawyers submitted a lengthy sentencing memo arguing that his advisory guideline range is 63-78 months that that "a sentence that returns Sam promptly to a productive role in society would be sufficient, but not greater than necessary, to comply with the purposes of sentencing."
Unsurprisingly, federal prosecutors have a different sentencing perspective. And, in the run-up to the March 28 sentencing, it has not filled this even longer sentencing memorandum. The argue that SBF's guideline range is literally off the charts:
Based on the foregoing, the adjusted offense subtotal is 60. Because any offense level in excess of 43 is treated as an offense level of 43, 43 is the total applicable offense level. (PSR ¶ 89). The defendant’s criminal history score is zero, which puts him in Criminal History Category I. (PSR ¶ 92). Based upon these calculations, Bankman-Fried’s advisory Guidelines imprisonment range is life. (PSR ¶ 129). However, because the statutorily authorized maximum sentence is 110 years’ imprisonment, which is less than life imprisonment, the applicable Guidelines sentence is 110 years’ (1,320 months) imprisonment. U.S.S.G. §§ 5G1.1(a), 5G1.2(d)
Notably, though, federal prosecutors do not ultimately advocate for a sentence of imprisonment for 110 years for SBF. As explained at the end of its preliminary statement, the feds think that less than half of this term will do the trick:
The scope, duration, nature, and sheer number of Bankman-Fried’s crimes, the resulting harm they have caused, the willful disregard of the rule of law, and the absence of countervailing mitigating circumstances render him exceptionally deserving of a sentence that is sufficiently severe to provide justice for the defendant’s crimes and to dissuade others from committing similar crimes, and that will permit the defendant to return to liberty only after society can be assured that he will not have the opportunity to turn back to fraud and deceit. Although it is unlikely (but not impossible) that the defendant will work in finance again, and will likely forfeit all of his ill-gotten gains, justice requires that he receive a prison sentence commensurate with the extraordinary dimensions of his crimes. For these reasons, the legitimate purposes of punishment require a sentence of 40 to 50 years’ imprisonment.
Because a "split the difference" approach often serves as a reasonable first guess for a contested sentencing outcome, I am tempted to put the over/under for an imprisonment term here at 25 years. I am not familiar enough with Judge Lewis Kaplan's sentencing history to make a bolder prediction; folks in the comments are certainly welcome to do so.
Prior related posts:
- You be the judge: what federal sentence for Sam Bankman-Fried after guilty verdict on seven criminal fraud counts?
- Some early chatter and speculation about Sam Bankman-Fried's coming federal sentencing
- Should a bounce in crypto markets mean a much lower federal sentence for Sam Bankman-Fried?
- Lawyers for Sam Bankman-Fried in lengthy memo request "a sentence that returns Sam promptly to a productive role in society"
- Some notable developments and commentary on Sam Bankman-Fried's coming sentencing
March 15, 2024 at 05:41 PM | Permalink
Comments
I hate to say it, but sometimes I wonder if one has to have an element of sadism in one's makeup to enjoy being a prosecutor. 15 or 20 years is just not enough time for a non-violent guy who could still do a lot with his life? If did really deplorable stuff, but really?? What the hell is wrong with these people and maybe more generally our criminal justice system. It's nuts.
Posted by: Mark | Mar 15, 2024 7:00:06 PM
Mark, thank you for your post. I thought I was the only one who felt this way. It makes me shudder to think how bloodthirsty - and yes, sadistic - the American people are when it comes to criminal justice. I am thankful they are not given options such as a guillotine or death by stoning, and other medieval ways of punishment. Because they would gladly choose them, and enjoy the gore. Yes, here's a non-violent young man who is going to spend most of his life locked up, and society will spend an average $38,000 on him per year just to make an example of him. But, who else is going to think of doing what he did anyway? And if someone does, they aren't going to see his sentence as relevant to them anyway. What's important is, is going to do this again? I really don't think so, even if he's sentenced to 5 to 7 years in prison. And if there's a risk of that, why not sentence him by prohibiting him from taking any part in any type of work that would make that possible?
Posted by: Anon | Mar 16, 2024 3:46:08 AM
I'm confused as to how a sentence of 5-7 years adequately deters this kind of conduct. Heads, I become a decabillionaire, tails I serve 5-7 years? Morality aside, I think a lot of people would sign up for that deal if offered to them.
And there's a good chance he would have gotten away with it had he been less greedy. And if you're giving 5-7 here, presumably you'd give significantly less for a defendant who accepted responsibility, didn't tamper with witnesses, and didn't perjure himself on the stand. So the real deterrent effect would be even less, as a rational fraudster would consider consequences based on rational post-arrest choices.
I object to going easy on him because he "could still do a lot with his life." His many facets of privilege are not a mitigating factor.
As far as Doug's guess, I thought the memo's chart identifying a set of common characteristics ($100MM loss, misappropriation, post-Booker) and showing mostly 40-50 year sentences provides a better basis for prediction than split the difference.
Posted by: Jason | Mar 16, 2024 10:23:27 AM
Any time in prison is punishment enough. To clarify, nobody wants to lose freedom for even a day unless they are completely irrational. That said, we can all argue until we are blue in the face about how long is enough, but it's all just empty words. If people worry that sentences are not long enough to stop the defendant and other potential "fraudsters," they should turn to scientific analysis/evidence and not emotional rhetoric to determine the "right" length of a sentence.
Posted by: Anon | Mar 17, 2024 4:03:28 AM
Anon --
The idea that "scientific analysis" can tell us the "right" sentence is not merely misguided but absurd. Punishment for crime has and should have a strong element of moral judgment, something that cannot possibly be captured by "scientific analysis."
Still, if you think otherwise, could you tell us what "scientific analysis" dictates as the sentence for Tsarnaev (the Boston Marathon bomber) and specifically how you derive your conclusion?
Posted by: Bill Otis | Mar 17, 2024 2:54:33 PM
The following phrase is something that only a lawyer could say: "the statutorily authorized maximum sentence is 110 years’ imprisonment, which is less than life imprisonment...".
Posted by: MBC | Mar 17, 2024 3:19:45 PM
Not sure how we get good "scientific analysis/evidence" here. Hard to get a sample of people in a position and inclination to commit massive frauds and study how they respond to various sentence lengths if caught. We do know, however, that SBF himself was often extremely calculating in his thinking about risk.
Also, I intuit that a lot of people people would accept a coin flip where heads gave you $10B and tails gave you a day in jail, a good number would accept a version where tails was 5-7 years, while somewhat fewer would accept where tails was life.
Posted by: Jason | Mar 18, 2024 7:35:14 AM
Liars lie, cheaters cheat, and the best way of predicting future behavior is by past behaviors. Isn't this what prosecutors, such as Bill Otis and his flock, have argued for the entirety of their careers? Isn't this one of the main tenets of our criminal justice punishment scheme?
Of course, scientific analysis would indicate that this is true for MANY types of crimes, but not all. Interestingly, the lowest recidivism rate applies to those convicted of (1) murder and (2) "possession of child sexual abuse material" (less than 5% recidivism). This is a scientific fact.
According to the Bureau of Justice Statistics, the recidivism rate for individuals convicted federally in the U.S. for fraud is around 40%. This means that approximately 40% of individuals convicted of fraud offenses at the federal level are rearrested for a new offense within three years of their release.
Posted by: SG | Mar 18, 2024 7:55:41 PM
SG --
"Liars lie, cheaters cheat, and the best way of predicting future behavior is by past behaviors. Isn't this what prosecutors, such as Bill Otis and his flock, have argued for the entirety of their careers?"
I'm not a prosecutor and haven't been since the last century. But when I was, I was proud of it -- proud to represent the United States in court. Were defense lawyers equally proud to be doing their darndest for the local child rapist? I wouldn't know. Not my line of work.
But I digress. Predicting future behavior by past behavior is less what I do (or did) than it is what NFL general managers do. They trade for players and make draft choices based on how the individual they're looking at played in the past. Why this strikes you as anything but ordinary common sense is a mystery.
Posted by: Bill Otis | Mar 18, 2024 11:48:45 PM
Boy! Talk about a 'knee-jerk reaction'!
If you re-read my post (while putting aside your triggered emotions because you saw it was from me), you will note that I was endorsing the approach of predicting likely future behaviors based on known and proven past behaviors. I was not disputing that concept at all, which you seem to believe that I was (a perfect example of "confirmation bias").
Mr. Otis also wrote: "Predicting future behavior by past behavior is less what I do (or did) than it is what NFL general managers do".
But when you were an AUSA, Mr. Otis, and you argued for a long sentence for an offender, did you NOT present this concept in some form or another to the court? Just about every county prosecutor and AUSA at every sentencing hearing for which I was present argued exactly this. Were you somehow different? Did you not calculate the expected sentence by using the Federal Sentencing Guideline chart which takes into account past behaviors and to an extent predicts future behaviors? I would find it quite unusual if you had not. It's just "ordinary common sense".
Posted by: SG | Mar 19, 2024 4:21:42 AM
