On the first page of the intro, we get some quotes about SBF’s philanthropy. On the next, we are told he “lived a very modest life” and that any reports of extravagance are fabrications. [N.B.: All page citations are to the typed numbers at the bottom, not to the PDF page number.]
For the forecasters: based on Guidelines calculations in the pre-sentence report (PSR) by Probation, the Guidelines range is 110 years (would be life, but is capped at the statutory max). Probation recommended 100 years. PSRs are sealed, so we’ll never see the full rationale on that. The average fraud defendant with a maxed-out offense level, no criminal history, and no special cooperation credit receives a sentence of 283 months.
The first part of the memo is about the (now advisory) Sentencing Guidelines used in federal court. The major argument is that there should be no upward adjustment for loss because everyone is probably getting all their money back. Courts have traditionally looked at the greater of actual or “intended” loss, but the memo argues that isn’t correct after a recent Supreme Court decision.
As a factual matter, I’m skeptical that the actual loss is $0, especially where much of the improvement is due to increases in the crypto market that customers would have otherwise benefitted from directly. Plus everyone getting money back (including investors who were defrauded) is far from a certain outcome, the appellate courts have been deferential to best-guess loss calculations, and the final Guidelines range would not materially change if the loss amount were (say) $25MM. If I’m the district judge here, I’d probably include some specific statements and findings in my sentencing monologue in an attempt to insulate this issue from appeal. Such as: I’d impose the same sentence no matter what the Guidelines said, because $0 dramatically understates the offense severity and $10B overstates it.
There are a few places in which the argument ventures into tone-deaf waters. The argument that SBF wasn’t in a position of public or private trust (p. 25-26) seems awfully weak and ill-advised to my eyes. The discussion of possible equity-holder losses (pp. 20-21) also strikes me as dismissive at points. No, equity holders don’t get a money-back guarantee, but they are entitled to not be lied to when deciding where to invest.
The second half involves a discussion of the so-called 3553 factors that a court must consider in determining a sentence that is sufficient, but not greater than necessary. Pages 41-42 discuss Peter Singer and earning to give, while pages 46-50 continue on about SBF’s philanthropy (including a specific reference to GWWC and link to the pledger list on page 46).
Throughout the memo, the defense asserts that FTX was different from various other schemes that were fraudulent from day one (e.g., p. 56). My understanding is that the misuse of customer funds started pretty early in FTX’s history, so I don’t give this much weight. The memo asserts that SBF was less culpable than various comparators, ranging from Madoff himself (150 years) to Elizabeth Holmes (135 months) (pp. 73-80). The bottom-line request is for a sentence of 63-78 months, which is the Guidelines range if one accepts the loss amount as $0 (p. 89).
[Caution: The remainder of this post contains more opinion-laden commentary than what has preceded it!]
I generally find the 3553 discussion unpersuasive. The section on “remorse” (pp. 55-56) rings hollow to me, although this is an unavoidable consequence of SBF’s trial litigation choices. There is “remorse” that people were injured and impliedly that SBF made various errors in judgment, but there isn’t any acknowledgment of wrongdoing. One sentence of note to this audience: “Sam is simply devastated that the advice, mentorship, and funding that he has given to the animal welfare, global poverty, and pandemic prevention movements does not begin to counteract the damage done to them by virtue of their association with him.” (p. 55).
I find the discussion of the FTX Foundation to be jarring, such as “Ultimately, the FTX Foundation donated roughly $150 million to charities working on issues such as pandemic prevention, animal welfare, and funding anti-malarial mosquito netting in Africa.” (p. 57). Attempting to take credit for sending some of the money you took from customers to charity takes a lot of nerve!
Although the memo asserts that SBF’s neurodiversity makes him “uniquely vulnerable” in prison (p. 58), the unfortunate truth is that many convicted criminals have characteristics that make successfully adapting to prison life more difficult than for the average person (e.g., severe mental illness, unusually low intelligence). So I’m not convinced by the memo that he would face an atypical burden that would warrant serious consideration in sentencing.
Although I certainly can’t fault counsel for pointing to SBF’s positive characteristics, I’m sure Judge Kaplan knows that many of his opportunities to legibly display these characteristics have been enabled by privilege that most people being sentenced in federal court do not have.
I’m also not generally convinced by the arguments about general deterrence. In abbreviated form, the argument is that running SBF through the ringer and exposing him to public disgrace is strong enough that a lower sentence (and the inevitable lifetime public stigma) suffices to deter other would-be fraudsters. See pp. 66-67. And there’s good evidence that severity of punishment is relatively less important in deterrence.
However, if a tough sentence is otherwise just, I don’t think we need a high probability of deterrent effect for an extremely serious offense for extended incarceration to be worth it. Crypto scams are common, and as a practical matter it is difficult to increase certainty and speed of punishment because so much of the problematic conduct happens outside the U.S. So severity is the lever the government has. Moreover, discounts for offenders who have a lot to lose (because they are wealthy already) and/or are seen as having more future productive value seem backward as far as moral desert.
Finally, I think there’s potentially value in severity deterrence of someone already committing fraud; if the punishment level is basically maxed out at the $500M customer money you’ve already put at risk, there is no reason (other than an increased risk of detection) not to put $5B at risk. As the saying goes, “might as well be hanged for a sheep as for a lamb” as the penalty for ovine theft was death either way.
Defense recommendations on sentencing are generally unrealistic in cases without specific types of plea deal. This one is no different. Also, the sentencing discussion will sound extremely harsh to at least non-US readers . . . but that’s the situation in the US and especially in the federal system.
I’d note that SBF’s post-arrest decisions will likely have triggered a substantial portion of his sentence. Much has been written about the US “trial penalty,” and it is often a problem. However, I don’t think a discount of ~25-33% for a prompt guilty plea, as implied by the Guidelines for most offenses (also by the guidelines used in England and Wales) is penologically unjustified or coercive. Instead of that, SBF’s sentence is likely to be higher because of multiple attempts at witness tampering and evasive, incredible testimony on the stand. So he could be looking at ~double the sentence he would be facing if he had pled guilty.
He likely could not have gotten the kind of credit for cooperation his co-conspirators received (a “5K.1”) because there was no other big fish to rat out. Providing 5K.1 cooperation often reduces sentences by a lot, in my opinion often too much. Given the 5K.1 cooperation and the lesser role, one must exercise caution in using co-conspirator sentences to estimate what SBF would have received if he had promptly accepted responsibility.
Finally, I’d view any sentence over ~60 years as de facto life and chosen more for symbolic purposes than to actually increase punishment. Currently, one can receive a ~15% discount for decent behavior in prison, and can potentially serve ~25-33% of the sentence in a halfway house or the like for participating in programs under the First Step Act. It’s hard to predict what the next few decades will bring as far as sentencing policy, but the recent trend has been toward expanding the possibilities for early release. So I’d estimate that SBF will actually serve ~75% of his sentence, and probably some portion of it outside of a prison.
SBF’s sentencing memorandum is here.
On the first page of the intro, we get some quotes about SBF’s philanthropy. On the next, we are told he “lived a very modest life” and that any reports of extravagance are fabrications. [N.B.: All page citations are to the typed numbers at the bottom, not to the PDF page number.]
For the forecasters: based on Guidelines calculations in the pre-sentence report (PSR) by Probation, the Guidelines range is 110 years (would be life, but is capped at the statutory max). Probation recommended 100 years. PSRs are sealed, so we’ll never see the full rationale on that. The average fraud defendant with a maxed-out offense level, no criminal history, and no special cooperation credit receives a sentence of 283 months.
The first part of the memo is about the (now advisory) Sentencing Guidelines used in federal court. The major argument is that there should be no upward adjustment for loss because everyone is probably getting all their money back. Courts have traditionally looked at the greater of actual or “intended” loss, but the memo argues that isn’t correct after a recent Supreme Court decision.
As a factual matter, I’m skeptical that the actual loss is $0, especially where much of the improvement is due to increases in the crypto market that customers would have otherwise benefitted from directly. Plus everyone getting money back (including investors who were defrauded) is far from a certain outcome, the appellate courts have been deferential to best-guess loss calculations, and the final Guidelines range would not materially change if the loss amount were (say) $25MM. If I’m the district judge here, I’d probably include some specific statements and findings in my sentencing monologue in an attempt to insulate this issue from appeal. Such as: I’d impose the same sentence no matter what the Guidelines said, because $0 dramatically understates the offense severity and $10B overstates it.
There are a few places in which the argument ventures into tone-deaf waters. The argument that SBF wasn’t in a position of public or private trust (p. 25-26) seems awfully weak and ill-advised to my eyes. The discussion of possible equity-holder losses (pp. 20-21) also strikes me as dismissive at points. No, equity holders don’t get a money-back guarantee, but they are entitled to not be lied to when deciding where to invest.
The second half involves a discussion of the so-called 3553 factors that a court must consider in determining a sentence that is sufficient, but not greater than necessary. Pages 41-42 discuss Peter Singer and earning to give, while pages 46-50 continue on about SBF’s philanthropy (including a specific reference to GWWC and link to the pledger list on page 46).
Throughout the memo, the defense asserts that FTX was different from various other schemes that were fraudulent from day one (e.g., p. 56). My understanding is that the misuse of customer funds started pretty early in FTX’s history, so I don’t give this much weight. The memo asserts that SBF was less culpable than various comparators, ranging from Madoff himself (150 years) to Elizabeth Holmes (135 months) (pp. 73-80). The bottom-line request is for a sentence of 63-78 months, which is the Guidelines range if one accepts the loss amount as $0 (p. 89).
There are 29 letters in SBF’s support by family members, his psychiatrist, Ross Rheingans-Yoo, Kat Woods, and a bunch of names I don’t recognize.
[Caution: The remainder of this post contains more opinion-laden commentary than what has preceded it!]
I generally find the 3553 discussion unpersuasive. The section on “remorse” (pp. 55-56) rings hollow to me, although this is an unavoidable consequence of SBF’s trial litigation choices. There is “remorse” that people were injured and impliedly that SBF made various errors in judgment, but there isn’t any acknowledgment of wrongdoing. One sentence of note to this audience: “Sam is simply devastated that the advice, mentorship, and funding that he has given to the animal welfare, global poverty, and pandemic prevention movements does not begin to counteract the damage done to them by virtue of their association with him.” (p. 55).
I find the discussion of the FTX Foundation to be jarring, such as “Ultimately, the FTX Foundation donated roughly $150 million to charities working on issues such as pandemic prevention, animal welfare, and funding anti-malarial mosquito netting in Africa.” (p. 57). Attempting to take credit for sending some of the money you took from customers to charity takes a lot of nerve!
Although the memo asserts that SBF’s neurodiversity makes him “uniquely vulnerable” in prison (p. 58), the unfortunate truth is that many convicted criminals have characteristics that make successfully adapting to prison life more difficult than for the average person (e.g., severe mental illness, unusually low intelligence). So I’m not convinced by the memo that he would face an atypical burden that would warrant serious consideration in sentencing.
Although I certainly can’t fault counsel for pointing to SBF’s positive characteristics, I’m sure Judge Kaplan knows that many of his opportunities to legibly display these characteristics have been enabled by privilege that most people being sentenced in federal court do not have.
I’m also not generally convinced by the arguments about general deterrence. In abbreviated form, the argument is that running SBF through the ringer and exposing him to public disgrace is strong enough that a lower sentence (and the inevitable lifetime public stigma) suffices to deter other would-be fraudsters. See pp. 66-67. And there’s good evidence that severity of punishment is relatively less important in deterrence.
However, if a tough sentence is otherwise just, I don’t think we need a high probability of deterrent effect for an extremely serious offense for extended incarceration to be worth it. Crypto scams are common, and as a practical matter it is difficult to increase certainty and speed of punishment because so much of the problematic conduct happens outside the U.S. So severity is the lever the government has. Moreover, discounts for offenders who have a lot to lose (because they are wealthy already) and/or are seen as having more future productive value seem backward as far as moral desert.
Finally, I think there’s potentially value in severity deterrence of someone already committing fraud; if the punishment level is basically maxed out at the $500M customer money you’ve already put at risk, there is no reason (other than an increased risk of detection) not to put $5B at risk. As the saying goes, “might as well be hanged for a sheep as for a lamb” as the penalty for ovine theft was death either way.
Defense recommendations on sentencing are generally unrealistic in cases without specific types of plea deal. This one is no different. Also, the sentencing discussion will sound extremely harsh to at least non-US readers . . . but that’s the situation in the US and especially in the federal system.
I’d note that SBF’s post-arrest decisions will likely have triggered a substantial portion of his sentence. Much has been written about the US “trial penalty,” and it is often a problem. However, I don’t think a discount of ~25-33% for a prompt guilty plea, as implied by the Guidelines for most offenses (also by the guidelines used in England and Wales) is penologically unjustified or coercive. Instead of that, SBF’s sentence is likely to be higher because of multiple attempts at witness tampering and evasive, incredible testimony on the stand. So he could be looking at ~double the sentence he would be facing if he had pled guilty.
He likely could not have gotten the kind of credit for cooperation his co-conspirators received (a “5K.1”) because there was no other big fish to rat out. Providing 5K.1 cooperation often reduces sentences by a lot, in my opinion often too much. Given the 5K.1 cooperation and the lesser role, one must exercise caution in using co-conspirator sentences to estimate what SBF would have received if he had promptly accepted responsibility.
Finally, I’d view any sentence over ~60 years as de facto life and chosen more for symbolic purposes than to actually increase punishment. Currently, one can receive a ~15% discount for decent behavior in prison, and can potentially serve ~25-33% of the sentence in a halfway house or the like for participating in programs under the First Step Act. It’s hard to predict what the next few decades will bring as far as sentencing policy, but the recent trend has been toward expanding the possibilities for early release. So I’d estimate that SBF will actually serve ~75% of his sentence, and probably some portion of it outside of a prison.