OPINION: This article may contain commentary which reflects the author's opinion.
The sentence in the New York hush money case for former President Donald Trump could be the first time in U.S. history that a former president was sent to jail. This could happen next month.
A jury found the former president guilty in May of 34 criminal counts of falsifying business records to illegally influence the 2016 presidential election. Several experts told ABC News that the former president probably won’t go to prison before the 2024 election. Trump will be sentenced on July 11.
Five of the 14 lawyers and law professors who spoke to ABC News thought a prison sentence was likely. Two said the decision was close, and seven said they didn’t think a prison sentence was likely because of the difficulties in enforcing it, the lack of precedent for putting first-time offenders in jail, and the political effects of such a sentence.
Most experts believed that Trump’s sentence would likely be put on hold until after the 2024 election, or until he wins his appeal, which could take months to a year. Before then, he would likely not have to serve any part of his sentence.
“There is no more serious falsification of business records case that I can remember in the history of supervising and prosecuting many of these cases,” said Karen Friedman Agnifilo, who previously served as the chief assistant district attorney in the Manhattan district attorney’s office.
The United States Sentencing Commission established a point system that judges typically use to inform their sentencing decisions in federal court.
However, in the case of Trump, Judge Merchan has fewer specific guidelines. According to New York’s penal law, the maximum prison sentence for Class-E felonies is four years. Additionally, probation officials will prepare a report recommending a sentence for Trump, which Judge Merchan can take into account when considering the nature of the crime, as well as Trump’s personal history and character.
“On behalf of New Yorkers — that’s who Judge Merchan is speaking up for — how big a breach of the social trust was this compared to all the other crimes that he and other judges sentence every day? There is literally no case that has been remotely similar to the criminal prosecution conviction of a former chief executive of the country,” said Justin Levitt, a constitutional law professor at Loyola Law School.
Manhattan DA Alvin Bragg brought his case using a new legal theory. He claimed that Trump falsified business records to conceal a violation of a New York election law that prohibits conspiracies to influence an election using unlawful means.
Some experts ABC News spoke with were skeptical that Merchan could justify a prison sentence based on individual deterrence; that is, discouraging Trump himself from committing a similar crime again.
“It’s not necessarily clear to me that this is a situation that will arise again that could be specifically deterred,” said former federal prosecutor Jarrod Schaeffer. “Looking at Trump’s behavior and his track record, I’m not sure that the judge will hold out hope that his sentence in this case will have a strong deterrent effect on him.”
Judge Merchan could choose to sentence Trump to a period of probation or a conditional discharge.
If Trump were sentenced to probation, he would have to report to a probation officer and meet specific conditions. This could include potential travel restrictions or curfews, which could be enforced with the use of an ankle monitor, according to former federal prosecutor Michael Zweiback.
However, enforcing these terms in the middle of his presidential campaign could be challenging, according to New York Law School professor Anna Cominsky.
“The more restrictions on someone’s movement sometimes makes it more difficult for them to live their lives and do their jobs,” Cominsky said. “So when it comes to Trump, part of his job is right now campaigning and traveling around the country. He has to be able to do that.”
ABC News reported: “Trump alternatively could be sentenced to a conditional discharge where Judge Merchan himself would oversee that Trump meets the conditions of his release, rather than a probation officer. The conditions of Trump’s release could include paying a fine, performing community service, and avoiding future arrests.”
