Their letters painted Bankman-Fried as “anhedonic” and a well-intentioned nerd. His lawyers seized on those themes when arguing for leniency at his sentencing hearing in Manhattan before Judge Lewis A. Kaplan.
“I’m asking the court not to destroy the prime of this complicated, brilliant, gentle, complex, kind, young man’s life,” Bankman-Fried’s lawyer Marc Mukasey said.
The defense did a good job of highlighting Bankman-Fried’s good qualities and ensuring that the focus wasn’t exclusively on his crimes, Andrey Spektor of Bryan Cave Leighton Paisner LLP said.
But letters of support—which judges have come to expect in most cases—can only do so much.
Spektor, a former prosecutor with experience as a clerk, said it’s more important that judges hear a defendant “speak from the heart.”
Bankman-Fried did give a statement, but Kaplan was dismissive.
What others say about a defendant’s character likely matters less if a court has reason to believe the defendant has been dishonest or engaged in attempted witness tampering, as Bankman-Fried did.
“I think that added years to his sentence,” Spektor said.
Kaplan, of the US District Court for the Southern District of New York, seemed largely unswayed by promises—made in the letters and elsewhere—of the contributions Bankman-Fried could make to society upon his eventual release.
“There is a risk that this man will be in a position to do something very bad in the future,” the judge said. “And it’s not a trivial risk. Not a trivial risk at all.”
A Holistic View
Federal law demands that judges take a holistic approach when sentencing defendants, requiring them to consider not just “the nature and circumstances of the offense,” but the “history and characteristics of the defendant.” Bankman-Fried’s convictions carried a 110-year statutory maximum, with prosecutors seeking a 40- to 50-year sentence. The defense sought a maximum prison term of six-and-a-half years.
A defendant’s guidelines range—driven by the offense conduct and the defendant’s criminal history—serves as the starting point for determining a defendant’s sentence. Judges are free to deviate from the guidelines to ensure a sentence is sufficient, but not greater than necessary to accomplish the goals of sentencing.
This is where letters of support come into play.
“The government always tries to demonize the defendant and it’s the defense lawyer’s job to humanize them, so these letters are really, really important,” Miami-based defense attorney David Markus of Markus Moss PLLC said.
Letters of support—typically prepared by family, friends, and community members—provide the judge with much-needed information about who someone really is, Markus said.
In the worst-case scenario for the defendant, letters of support just don’t help at all, Ashlee Martin, a former prosecutor and white collar defense lawyer with Gerger Hennessy Martin & Peterson LLP in Houston, said.
She always uses them, and it would be a mistake not to, she said. Character letters can go a long way in helping a judge to see a defendant’s humanity, and they generally won’t do any harm so long as they’re well-executed, she said.
The absence of any letters of support, particularly for a white collar defendant with resources and connections, can raise red flags.
It did for then-district court judge Judge Denny Chin when he sentenced Bernie Madoff to a 150-year prison sentence in 2011.
“In terms of mitigating factors in a white-collar fraud case such as this, I would expect to see letters from family and friends and colleagues,” Chin said at that sentencing. “But not a single letter has been submitted attesting to Mr. Madoff’s good deeds or good character or civic or charitable activities,” he said. “The absence of such support is telling.”
Rarely, character letters can have a significant effect on a judge’s sentencing determination.
When toymaker Ty Warner of Beanie Babies fame was sentenced in 2014 on a single count of tax evasion, outstanding letters of support highlighting his charitable acts appear to have been the difference between prison and a probationary sentence.
Judge Charles P. Kocoras said he found Warner’s “charity an private acts of kindness, generosity benevolence” to be overwhelming.
Dos and Don’ts
Some letters of support are better than others. At a minimum, they should avoid doing things that might offend the judge.
Letters that could be ill-received include letters submitted by a person of note who “doesn’t really know the defendant,” Martin said. That could be understood to be a letter “that’s trying to influence, rather than inform the judge.”
Worse, a letter like that can ruin the bunch, making a judge wonder whether the rest of the letters require scrutiny, Spektor said. And lawyers who submit such valueless letters diminish the attention given to really critical submissions, he said.
Markus said the worst kinds of character letters minimize the person’s conduct.
He advises individuals writing letters of support not to talk about the offense at all. Good letters avoid platitudes and tell a story that give the judge a sense of the worthwhile things a defendant has done, he said.
“Everyone has good in them,” Markus said. Effective letters show what’s still good about the person, and why they’re worthy of support.
Bankman-Fried is represented by Mukasey Young LLP.
The case is United States v. Bankman-Fried, S.D.N.Y., No. 1:22-cr-00673, docket 3/28/24.
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