Will Trump go to jail for hush money crime? Experts are divided

After becoming the first former president to face criminal charges, Donald Trump will face another historic first next month: He could become the first former president in U.S. history to be sentenced to prison when he will be convicted in his secret money case in New York.

Several experts told ABC News there is little chance the former president will serve time behind bars before the 2024 election, after a jury convicted him in May of 34 counts for falsifying business records related to an attempt to illegally influence the 2016 presidential election.

But it's possible that the nature and circumstances of Trump's alleged criminal conduct — in addition to his lack of remorse and his behavior during the trial — could provide Judge Juan Merchan with justification to impose a sentence that includes prison time. , some experts told ABC News.

Of the 14 lawyers and law professors who spoke to ABC News, five thought a prison sentence was likely, two described the decision as a fluke and seven thought a prison sentence was unlikely due to a combination of logistical challenges, a lack of precedent for incarcerating first-time offenders, and the political implications of such a sentence.

Whatever the punishment, experts largely agree that Trump's sentence will most likely be suspended pending his appeal — a process that could take several months to a year — meaning the former President would likely avoid serving part of his sentence until his sentence is over. 2024 election.

On the eve of sentencing on July 11, Judge Juan Merchan faces the unprecedented question of how to punish the former president for crimes that prosecutors have called in the harshest terms – a “subversion of democracy” and “outright voter fraud” – but who were charged using the least serious class of crimes in New York.

“There is not a more serious business document falsification case that I can recall in the history of overseeing and prosecuting many of these cases,” said Karen Friedman Agnifilo, who previously served as an assistant district attorney chief of the Manhattan district attorney's office.

Compared to federal court judges — whose sentences are normally guided by a point system created by the U.S. Sentencing Commission — Merchan has fewer reference points when sentencing Trump. New York criminal law limits prison sentences for Class E felonies to four years, and probation officials will prepare a report with a recommendation for Trump's sentence, which Merchan can take into account during the evaluation of the nature and circumstances of the crime as well as the history and character of Trump.

“On behalf of New Yorkers – this is why Judge Merchan speaks – how big is the violation of the social trust compared to all the other crimes that he and other judges condemn every day?” said Justin Levitt, a constitutional law professor at Loyola Law School. “There is literally no case that even remotely resembles the criminal conviction of a former chief executive of the country.”

Here are six questions that will likely influence how the judge makes his decision.

How were similar defendants convicted?

While the Manhattan District Attorney frequently accuses defendants of falsifying business records (there were 437 such charges in the decade before Trump's indictment, according to a court filing last year ), Merchan might have a hard time finding relevant precedent in these cases, experts. said.

Manhattan District Attorney Alvin Bragg argued his case based on a new legal theory that Trump falsified business records to cover up a violation of a New York election law that prohibits conspiracies to influence an election by illegal means.

“This is not a run-of-the-mill case of falsification of business records,” Jeremy Saland, a former Manhattan deputy district attorney, told ABC News.

While first-time offenders convicted of falsifying business records normally avoid prison, similar cases involving campaign contributions or public officials suggest incarceration is a possibility.

Richard Brega, a New York bus magnate who pleaded guilty to one count of falsifying business records related to illegal campaign contributions, was sentenced to a year in prison in 2018. The former comptroller of New York Alan Hevesi, who pleaded guilty to receiving a reward for his official duties. for misconduct – a class E misdemeanor – linked to a pay-to-play scheme involving the New York pension fund, was sentenced in 2011 to one to four years in prison.

“Ultimately, this is an isolated case and it will be extremely difficult for the judge to impose a fair and appropriate sentence,” said Robert Mintz, a former federal prosecutor.

What factors could lighten Trump's sentence?

Trump's status as a first-time offender, the nonviolent nature of his crime, his advanced age and lack of flight risk are mitigating factors that could lessen his sentence, according to Bennett L. Gershman, a professor at the Pace University School of Law.

However, Gershman warned that even though Trump was 78 years old at the time of his conviction, many white-collar defendants were receiving prison sentences despite their advanced age.

“I would be shocked if he didn’t impose a prison sentence,” Gershman said. “Merchan imposes harsh sentences. He is a difficult judge, given his experience on the bench.”

Has Trump shown remorse?

Trump's lack of remorse or admission of wrongdoing could count against the former president at sentencing, where Merchan can consider Trump's overall history and character. Trump also frequently targeted Merchan with personal attacks related to his daughter's political work and compared the judge to a “tyrant” and a “devil.”

Merchan also held Trump in criminal contempt ten times during the trial for knowingly making comments about witnesses and jurors in violation of the case's limited silence order.

“I think most judges believe that some sort of prison sentence is necessary to affirm the need for a defendant to respect the court,” said Stephen Saltzburg, a professor at George Washington University.

Would a prison sentence be a deterrent?

In addition to their purported goal of rehabilitation or retribution, prison sentences are often used by judges to deter the accused or the general public from committing similar crimes in the future.

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 recur and that could be specifically deterred,” said former federal prosecutor Jarrod Schaeffer. “Given Trump's behavior and his track record, I'm not sure the judge can expect his conviction in this case to have a strong deterrent effect on him.”

Still, the conviction could provide an opportunity for general deterrence to the public, including other public officials, according to Jeffrey Cohen, an associate professor of law at Boston College.

“When you have a high-profile defendant, you want his punishment to discourage other people from doing that kind of thing,” Cohen noted.

What other options does Merchan have for Trump's sentence?

Merchan could choose to sentence Trump to probation or parole.

If sentenced to probation, Trump will have to report to a probation officer and meet certain conditions, including possible travel restrictions or curfews that could be enforced using an ankle monitor, according to former federal prosecutor Michael Zweiback. However, enforcing the terms of Trump's probation in the midst of his presidential campaign could prove difficult, according to Anna Cominsky, a professor at New York Law School.

“The more restricted a person’s movement is, the harder it is sometimes for them to live their life and do their job,” Cominsky said. “So when it comes to Trump, part of his job right now is to campaign and travel around the country. He has to be able to do that.”

Trump could also be sentenced to parole where Judge Merchan himself would ensure that Trump fulfills the conditions of his release, rather than a probation officer.

Conditions of Trump's release could include paying a fine, performing community service and avoiding future arrests.

“He could be creative here, and I think it's kind of a wild card, is that the judge has a lot of discretion in crafting a sentence,” said former federal prosecutor Joshua Naftalis .

What impact would this sentence have on the elections – and does it matter?

Trump's conviction comes just four days before the Republican National Convention, and the former president faces serving part of his sentence as he runs for president.

The political undercurrent adds another layer of complexity to the already thorny sentencing, as the former president continues to allege without evidence that the case against him was politically motivated.

Although Merchan could choose to completely ignore the political implications of the conviction, the broader ramifications of the sentence could play into Merchan's decision regarding the most effective punishment for the former president.

“There are political issues around his sentencing to prison right before the convention, and that fuels the narrative that these prosecutions were actually intended to prevent him from campaigning and to prevent him from taking office again president,” Bader said.