Advocating for the Guilty

Where do you live? I’m asking because your area code is from California.
I live in Scottsdale, Arizona. I have a California phone number because that’s where I used to be on shlichus 20 years ago.

You’re still on shlichus. It’s just a bit atypical.
Correct. The Aleph Institute is under the auspices of Chabad, and the shluchim under Aleph are part of the shluchim network.

I guess there are many aspects to the mission.
That’s exactly right. It’s interesting that in my case it’s not location oriented. Whereas most shluchim are usually specific to a location, I go to courthouses around the country.

So you don’t travel to prisons.
No. The uniqueness of this department is that the focus has nothing to do with prisons. The prisoners are already being visited. I go to court to advocate for people who are being sentenced. Typically, they will have pled guilty, but they still have to be sentenced by a judge who has a lot of discretion, and I go to court to try to propose an alternative to incarceration.
From my own little bit of advocacy, I’ve learned that the Supreme Court encourages the courts to not only take the crime into consideration, but also the person who committed it. People think that advocates are trying to ask for a favor, but that’s not the case.
You’re right that many people misunderstand that. Until 2005, the federal sentencing guidelines were very rigid. This was done to make sure that there wasn’t any disparity around the country. A judge had only a small amount of wiggle room measured in months when it came to sentencing. Then, in 2005, the Supreme Court’s Booker decision changed the guidelines to be only advisory, so now a judge has the discretion both downward and upward, as we know from the horror story of Sholom Mordechai Rubashkin, where the judge outdid the viciousness of the prosecutor and gave him 27 years instead of the 25 years they had been asking for.

But the guidelines are still very much what the judges look to for guidance, even though they’re only advisory.
That’s correct. Let’s put it this way: When the sentencing hearing commences, it’s in the lawyer’s field to ask for a departure. Meaning, let’s first argue about whether the guidelines are accurate based on the loss amount, which drives up the guidelines. If the guy got tens of millions of dollars in the scheme that’s going to drive up the guidelines by a lot, after which they’ll argue over whether there was an actual loss and if there was intent. I don’t start until after they’re done discussing what the guidelines actually say for this particular case, at which point it becomes my job to start talking about the person’s humanity. It’s less about the technical details and more about the individual. Many months and sometimes even years go into that presentation.
As Ben Brafman told me, there’s another aspect to it, which is that in state court, or at least in New York State, part of the plea agreement is about the actual sentence. By contrast, in federal court, regardless of what you negotiate with the prosecutors, once you plead guilty it’s still up to the judge to hand down whatever sentence he wants. The judge can say, “I know that you pled guilty and the prosecutors said they wouldn’t seek more than 12 months, but I’m going to give you five years because I find the crime to be so egregious.”
I’ve seen that exact scenario.

So if I understand correctly, that’s where you step in and say, “We know that this person is guilty because there was an admission of guilt, but please take his overall personality and circumstances into consideration and reduce the sentence.”
Yes. In a certain sense, it’s like what we do on Rosh Hashanah and Yom Kippur. Instead of just coming and saying, “Here’s where I’m at, here’s what I did, and this is how you should judge me,” there’s always room for a person to say, “But I’m working on it now.” It takes a long time before a defendant goes to federal court. It can be months or even years until he has to make a statement at sentencing to demonstrate that he’s not the same person he was when he committed the offense. I’m representing that period of time in the person’s life when there has been a turnaround. I make the case that there’s a transformation taking place, and I’m asking the judge to allow him to continue those activities, as well as the talks he’s giving to others l’maan yishme’u v’yira’u. These are all very important things for society for people who have messed up.