Sentencing Donald Trump

By Wendell Griffen  

A New York state court jury found Donald Trump guilty of committing 34 felony counts of falsifying business records to conceal checks signed by Trump to repay his former attorney (Michael Cohen) in 2017 for suppressing unfavorable information about Trump’s alleged sexual encounter years earlier before the November 2016 presidential election. Trump could be sentenced by Judge Juan Merchan by fine, up to four years imprisonment, or probation on each of the 34 counts. Because I had the same sentencing responsibilities for the last 12 of my 25-year tenure as state court judge in Arkansas (I retired at the end of 2022), I am familiar with the issues Judge Merchan faces as he contemplates sentencing Donald Trump on July 11, 2024.

There are four theories of punishment judges weigh once persons have been convicted of crimes. They are retribution, deterrence, prevention and rehabilitation. Each theory has its own benefits and limitations.

The oldest theory or reason for punishment is retribution. This theory holds that people who commit crimes should suffer adverse consequences to punish them for the wrongs they commit, and the harms society suffers from those wrongs. That punishment signals to others that society will not tolerate the offending behavior and that offenders will not escape adverse consequences.

Another reason for criminal punishment is prevention. This theory is based on the belief that punishment should prevent wrongdoers from continuing wrongful behavior, thereby working to make society safer. For example, imprisonment operates to prevent certain offenders from continuing wrongful conduct by separating them from the wider community. Electronic monitoring prevents offenders from continuing wrongful conduct by limiting their freedom of movement and making their whereabouts known to law enforcement agencies.

A third theory of punishment is deterrence. Society imposes punishment to deter others from similar wrongdoing. Depending on the circumstances, fines, imprisonment, probation and suspended sentences also work to deter offenders from re-offending.

The fourth theory of punishment is based on rehabilitation. It is based on the view that wrongdoers can become law-abiding people and restored to society through education, counseling or other processes.

Judge Merchan will consider the theories of punishment as he weighs how to sentence Trump. He will also review the pre-sentence report and recommendation submitted by the probation department concerning Trump’s personal history, health, education, prior legal history, as well as his pre-trial, trial and post-trial behavior.

Trump is a convicted felon. He has no presumption of innocence. District Attorney Alvin Bragg’s legal team has hurdled the burden of proof it faced and convinced the jury of Trump’s guilt on each of the 34 felony charges. At sentencing, lawyers for the prosecution and Trump will offer evidence aimed at persuading Judge Merchan on the sentence Trump will get for each felony charge.

For each charge, Judge Merchan will decide whether to impose a fine, probation, imprisonment or suspend all or part of the sentence. Then he will decide whether the sentences will run concurrently (meaning at the same time) or consecutively (meaning that Trump would be required to satisfy each of the 34 sentences sequentially in time). And if Judge Merchan sentences Trump to imprisonment, he will decide when Trump will be taken into custody to begin the sentence.

Judge Merchan’s difficult work involves deciding which option would be most appropriate for Donald Trump and why other options would be less appropriate, if not inappropriate. I did that difficult work for 12 years. It was never simple because a judge must consider aggravating and mitigating factors in every sentence. And there are mitigating factors in Trump’s case. He has no prior criminal sentences. He is well-educated, politically connected and affluent.

Judge Merchan will consider the impact that Trump’s sentences will have on his family, with special regard for his wife and remaining dependent child (son). And Judge Merchan will probably consider the impact of any sentence option on Trump’s current and future political efforts.

That last factor can be mitigating or aggravating. Trump’s legal team will argue that Trump should be fined, sentenced to community service, or placed on probation – rather than sentenced to imprisonment for any length of time – because re-offending would subject him to up to four years imprisonment on each of the 34 felony charges, concurrently or consecutively. Trump’s lawyers will argue that the risk of imprisonment would deter Trump from further wrongful conduct and allow him to continue campaigning as a presidential candidate.

I disagree with those who believe Trump should not be sentenced to imprisonment. Trump is not a suitable candidate for probation. He flaunts the law and disrespects the rule of law. On 10 separate instances during his six-week trial, Trump was found guilty of contempt of court and fined $1,000 (the maximum fine possible for criminal contempt under New York law). He has shown no remorse, contrition or respect about the crimes that jurors found that he committed.

Instead, he accused jurors of mistreating him. If he is elected president of the United States, Trump plans to use presidential power to seek revenge against any person associated with his conviction, including prosecutors, witnesses, Judge Merchan and jurors,

Donald Trump is a sociopath, not someone who would benefit from probation. He will violate probation conditions and terms the same way he disobeyed Judge Merchan. That is why Trump is not a suitable candidate for a probationary or suspended sentence.

Probationary sentences are proper to teach, counsel and coach people whose history shows they want to follow the law. But probationary sentences do not work for sociopaths. People who defy the law or use legal protections and liberties to violate the rights of others require imprisonment, not instruction, in order to protect the rest of society and deter others from breaking the law.

So, I would sentence Donald Trump to the maximum prison term – four years – on each of the 34 felony counts of which he was found guilty of committing. I would run the sentences concurrently. I would not suspend any part of the sentences because Trump is more likely to reoffend than obey terms of a suspended sentence. I would not fine Trump. His followers would pay any fine in no time, and Trump would brag that they did so.

People who argue that Trump shouldn’t be treated like a criminal who deserves imprisonment should remember that another notorious felon, Alphonse Capone, was convicted of tax evasion and conspiring to violate prohibition laws—white-collar crimes— and paid  $50,000 in fines and court costs, and was sentenced to 11 years in prison.

Martha Stewart was sentenced to five months in federal prison, five months of home confinement, and two years of  probation for lying about a stock sale, obstruction of justice and conspiracy.

There is no legitimate reason why Trump should avoid imprisonment for his “white-collar” crimes.

If Americans are foolish enough to elect Trump president again, they will do so no matter what sentence he receives. That should not matter to Judge Merchan. His job is to sentence Trump for 34 felony counts of falsifying business records for the purpose of committing another crime or crimes. If that happens, Trump, his followers and other politicians will figure out how he will perform presidential duties from prison if voters restore him to presidential office.

I think Trump should be sentenced to prison. Trump and the rest of us will know on July 11 whether he receives that sentence from Judge Merchan.