Will the Punishment Fit the Crime, in the Allison Mack Sentencing?

by Paul Serran

As we gear up to Allison Mack’s sentencing on June 30th, we are still reeling from the impact of the Guidelines calculating her offense level of 35 with a sentencing range of 168 to 210 months’ imprisonment – 14.5 to 17 years.

To clearly demonstrate how off this feels to me, just compare it with Clare Bronfman’s Offense Level that was calculated as 16, with a Guidelines range of 21 to 27 months. Even with Judge Garaufis dramatically departing upwards her sentence, she received 81 months in prison – 6,7 years.

Now, I, for one, am all for stiff sentencing of people involved in serious crimes – but it doesn’t take any legal expertise to understand that Allison Mack’s crimes are not twice as grave as Clare Bronfman’s.

So, unless Judge Garaufis makes an equally dramatic downward departure in Mack’s sentencing, the relative weight of their prison terms will feel all wrong to the informed observer of this most consequential prosecution.

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What we see, here, to begin with, is clear evidence that the economic power got Clare Bronfman a much sweeter deal than Allison Mack.

In this article, we will look at the Mack Defense Sentencing Memorandum, at the Prosecution’s letter on the sentencing, at Allison Mack’s personal letter, and, finally, we will take a look at Judge Garaufis sentencing of Clare Bronfman for clues as to what we can expect.

“Ms. Mack respectfully submits,” attorneys William F. McGovern and Sean S. Buckley write in the Defense Memo, “that a sentence should be imposed which does not require incarceration.”

While I don’t agree with the sentence guidelines for Mack, I also am not convinced she should get home confinement in lieu of prison time. However, there is something in her nature as a criminal that requires study on our part. It’s the devil’s machinery of cults and sex traffickers, turning victims into abusers.

[This is not a feature unique to NXIVM, in fact, if you just look to the Jeffrey Epstein case, from Ghislaine Maxwell even to the whistleblower Virginia Roberts Giuffre, they were all in the same path – from abused to abusers. Virginia Giuffre fled Epstein’s influence when traveling in Bangkok to study massage therapy. Only, she had a side task – find and recruit a beautiful Thai girl for Epstein. Meaning, Giuffre fled just when she was about to engage in International Sex Trafficking.]

Many hold the view that when a victim goes beyond a certain point in the road of abusing others, they should be scorned forever and given no pity or understanding. I can’t quite agree with that.

Indeed, the Defense Memo reads: “The fact that Raniere was able to turn Ms. Mack into an agent of trauma is appalling, but consistent with the structure and function of cults like Nxivm.”

The defense argues that Allison Mack was “influenced by a number of factors, including untreated mental health issues”. What issues are those, and how severe are they argued to be, we don’t know, due to the many redactions of medical data in the documents. We can gather from many outside clues that we will point out, that she felt suicidal.

One satisfying turn of phrase is this: “Ms. Mack acknowledges that she is responsible for engaging in serious criminal conduct.” This is much better than her first voicing of an apology, where she wrote:

Her first manifestation moved away from the victims too fast, concentrating on the harm she did to her family. She is not, after all, on trial for the crimes against her family. As we will see in her letter, she tried harder this time around.

The Defense Memo goes on to remind the court that Mack was not involved “in certain uniquely troubling parts of Nxivm—such as Raniere’s associations with underage girls and the use of the court system to harass Nxivm opponents and whistleblowers.” This is a dig at Clare Bronfman, and we will further on see how the two compare.

After being confined at her parents’ house for more than three years, Mack’s defense intelligently praises the court for the beneficial impact on her life. “It is not an overstatement that the intervention of victims, law enforcement and the Court likely saved Ms. Mack’s life by leaving her no choice but to reintegrate into her family.”

It is explained again in the Defense Memo how she decided to flip on Raniere because in the March 2019 superseding indictment of Raniere there was the charge of Sexual Exploitation of a Child and Possession of Child Pornography.

“For more than a decade, Ms. Mack put her trust in a depraved manipulator, and let herself be indoctrinated. Ms. Mack knows that she has committed grave wrongs as part of her association with Raniere. She will be forever remorseful for her failings during that dark time.”

Those ‘wrongs’ and ‘failings’ are called crimes – I don’t see how these euphemisms help her cause.

The defense, and in fact pretty much everyone in these memos, is reminding others that “Sentencing Guidelines are no longer mandatory“. Which in this case may be a good thing.

“This is an unusual and atypical case where the perpetrator of the crime is also a victim of those very same crimes and thus does not fit comfortably within the ordinary scope of the Guidelines.” As I stated earlier, it’s not so ‘unusual and atypical’, but I fully agree this is a mitigating circumstance.

“In addition to being a wrongdoer, Ms. Mack was herself a ‘slave’ in the thrall of Raniere and who had herself been compelled to provide Raniere with ‘collateral’ and was subjected to prolonged abuse by Raniere.”

Mack eventually collaborated with the prosecution by doing numerous lengthy proffer sessions and also turned over relevant documents.

Mack was the source of a “critically important recording of Raniere discussing the branding of DOS members”.

To the mitigating aspect of her own abuse and sexual slavery and the collaboration with the authorities, the defense stresses that her “acceptance of responsibility, cooperation, and commitment to family, education, and therapy—supports the imposition of a mitigated sentence.”

One thing that bothers me, though: “Ms. Mack is pursuing these studies with the ultimate goal of developing skills that can help others in need.” It’s never too late to remind us that her troubles started by her need or wish “to help others”, to “empower women”. Perhaps she can live a rewarding life without helping others. This is some sort of savior complex, that is not helping anyone in the long run.

To better understand some of the circumstances surrounding Allison Mack’s sentencing, we will now review portions of the Prosecution Sentencing Memo and Allison Mack’s letter. We will also examine Judge Garaufis on the sentencing of Clare Bronfman.

Will the Punishment Fit the Crime, in the Allison Mack Sentencing?

The Prosecution Memo was written by Jacquelyn M. Kasulis, Acting United States Attorney – and Tanya Hajjar, Assistant U.S. Attorney. Assistance provided by the defendant Allison Mack and permit the Court, in its discretion, to impose a sentence below the otherwise applicable advisory Guidelines range based upon the substantial assistance she provided to law enforcement.”

This would have been good news for Mack’s defense, were it not for the fact that the prosecution also asserts that “the Guidelines calculation set forth in the PSR, reflecting a total offense level of 35 and an advisory Guidelines range of 168 to 210 months’ imprisonment, is accurate and should be adopted by the Court.”

As we were reminded in the first part of this article, it is tough to compare that with Clare Bronfman’s offense level of 16 and also the 21 to 27 months that the guidelines range projected.

“Although Mack could have provided even more substantial assistance had she made the decision to cooperate earlier,” the letter from the prosecution reads, “Mack provided significant, detailed and highly corroborated information which assisted the government in its prosecution.”

“Therefore, the government respectfully requests the Court impose a sentence below the applicable Guidelines range.”

Allison Mack also penned a personal letter to go with the other communications at this most critical juncture.

“To those who have been harmed by my actions“, the letter is addressed to.

“Because of the court’s decision to allow me to remain on home-confinement, I have had the opportunity to be alone with my thoughts in the most supportive and loving environment,” Mack writes. “Such an opportunity has offered me the time and strength I needed to confront the darkest parts of myself and come to terms with the pain my actions have inflicted on so many people I love, which is the reason for this letter.”

Once again, we are confronted with the question: what about the people she does not love? Also of note is that, in her letter, she only mentions Keith Raniere once, and she misspells his name when doing it. That is probably not a coincidence.

“I am sorry to those of you that I brought into Nxivm. I am sorry I ever exposed you to the nefarious and emotionally abusive schemes of a twisted man,” writes the actress, who says she has to live with an overwhelming shame for her past actions.

There is also some indication that she felt suicidal during this ordeal: “I am grateful that I have made it through this process alive and that I was stopped when I was.”

Her apparent good intentions are also present throughout the letter: “Please know that I am dedicated to spending my life working to mend the hearts I broke and continuing to transform myself into a more loving and compassionate woman.”

As I wrote in part one of this article, there is a big disproportion between the sentence handed to Clare Bronfman and the one that Mack is facing, now. And, unless Judge Garaufis makes a significant downward departure from the sentencing guidelines, we will be left with a sense of injustice to see that the actress, who was herself a sex-slave, would be treated so much more sternly than ‘Legatus’, who yielded the economic power on behalf of her criminally convicted Vanguard.

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But what can we learn from Bronfman’s sentencing?

To begin with, Judge Nicholas Garaufis reminds everyone that “It is well-established law that the Sentencing Guidelines are merely advisory, rather than binding on a district court. […] Accordingly, Supreme Court and Second Circuit precedent require that I determine an independently ‘reasonable’ sentence based on an ‘individualized application of the statutory sentencing factors'”.

Garaufis also notes that “a sentencing court has discretion to consider a broad range of information bearing on the history and characteristics of the defendant.” That is why the defense stressed so much Mack’s rehabilitation, her newfound bonds with her family, and her commitment to education.

“That is particularly true in a case such as this one,” he adds, “where the crimes of conviction, standing alone, do not fully encompass the larger pattern of misdeeds perpetrated by Ms. Bronfman.”

Since the Bronfman plea deal was so lenient, the Judge had to say that “This case is not about an isolated incident of credit card fraud or a run-of-the-mill case of harboring of illegal aliens for financial gain. To the contrary, the crimes to which Ms. Bronfman has pleaded guilty exist in the larger context of the crimes committed by her co-defendants, including Keith Raniere.”

In his rationale over the reasons to depart Bronfman’s sentence to triple the guidelines’ upper range, Garaufis writes: “Ms. Bronfman’s crimes were not committed in a vacuum. They were committed in connection with her role in Nxivm and her close relationship with Raniere, and I believe that it would be inappropriate for me to consider them divorced from that context.”

This may be bad news in the sentencing of Allison Mack. Because, as much as there are clear mitigating aspects in her case, and the prosecution has even asked for a diminished sentence in comparison with the guidelines, there is also the fact that, taken into context, the judge may well find evidence of supplemental crimes that will worsen her situation.

In fact, when a defendant takes a plea for certain crimes – but not others – he or she is still subject to the judge’s understanding of the case. In Bronfman’s case, Garaufis used evidence and testimony from the Raniere trial, that was not cross-examined by her lawyers, to add offenses to her ‘tally’. The judge used the concept of the “preponderance of the evidence” to do so.

Using this method, Garaufis found that “Ms. Bronfman made promises to immigrants that she did not keep, exacted labor that she did not pay for, and took advantage of these individuals’ financial straits and immigration statuses, in a manner that exacerbated both their financial and emotional vulnerabilities and made them more reliant on her and the Nxivm community, sometimes with very harmful consequences.”

Also not included in her plea was the fact that is apparent to all NXIVM commentators, but was not proved in court, that “Ms. Bronfman repeatedly and consistently leveraged her wealth and social status as a means of intimidating, controlling, and punishing individuals whom Raniere perceived as his adversaries, particularly Nxivm’s detractors and critics.”

Garaufis was appalled by Bronfman’s targeting of her own family to defend Raniere: she even hacked her own father’s computer when he started to be perceived as an enemy of NXIVM after calling it a ‘cult’ in Forbes Magazine. In this case, it’s obvious that Allison Mack’s renouncing of Raniere and her efforts to mend relations with her family will be a plus in the Judge’s evaluation of her.

By a preponderance of the evidence, the judge also found that while it couldn’t be proved that Bronfman knew about DOS, she willingly participated in the covering-up of it, and the harassing of the victims.

“In other words,” writes the judge, “here we have Ms. Bronfman, in September 2017, working hand-in-hand with Raniere to intimidate and silence victims of Raniere’s brutal campaign of sexual abuse and exploitation.”

And, after Raniere’s arrest, Bronfman funded his legal defense – which is something that sits quite badly with him. “Ms. Bronfman was concerned, first and foremost, with protecting Raniere and attacking his enemies.”

“This is not a defendant who has shown great respect for the law, and a just punishment must take that into account.”

The judge also comments on how specific her position was: “I don’t know how many other multimillionaires are out there, ready to devote the limitless resources at their disposal to supporting pyramid schemes run by dangerous criminals and stifling the voices of their critics and victims.”

Like Allison Mack, Clare Bronfman requested a non-custodial sentence, which the judge found not to be sufficient. That is also very likely to be true for Mack since the guidelines project such a hefty sentence, perhaps as much as 14-17 years.

“I have considered sentences that are below the Guidelines range and sentences that are within that range”, Garaufis wrote, “And I have considered sentences that are above that range.”

Using the Guidelines as an initial benchmark, but making an informed and individualized sentencing determination, Garaufis ended up with “a prison sentence of 81 months, which is three times the high end of the Guidelines range and which takes into account the severity of Ms. Bronfman’s illegal behavior”.

In the case of Allison Mack, the individualized sentence determinations should help bring down the sentence, as long as the judge does not find that the preponderance of the evidence shows signs of other crimes not included in the plea deal.

It would be in the interest of justice that the imbalance between Clare Bronfman’s and Allison Mack’s sentences not be so colossal, and that all the good work done in prosecuting and convicting NXIVM’s leaders not be tainted by such an incomprehensible difference of treatment.