Sentencing in federal cases is determined by the Federal Sentencing Guidelines. I outlined here how they affect those involved in the leaks case.

Even though the Supreme Court ruled earlier this year in Booker v. United States (pdf) that the guidelines are advisory rather than mandatory, judges still must compute the guidelines’ sentencing range and give it substantial weight. The sentencing guidelines for charges like perjury, making a false statement and obstruction of justice most likely will be outside the range of straight probation. The guidelines provide that some imprisonment is required except for those within Zone A or B of the Sentencing Table.

Check out that sentencing table. Even defendants with no prior convictions can get straight probation only if they are in Zone A, with an offense level between 0 and 8 (computing to a sentence of no more than six months.) If they are in Zone B, with an offense level of 9 or 10 (translating to 4 to 10 or 6 to 12 months) they must spend at least 1 month on home detention or in a halfway house. If they are in Zone C, with an offense level of 11 or 12 (and a term of 8 to 14 or 10 to 16 months) at least half of the minimum term must be served in prison. Think Martha Stewart.

If they fall anywhere in Zone D, they must serve their sentence in prison—albeit, for this group, that means a Club Fed. Good time only applies to prison sentences of more than 12 months and is limited to 54 days a year, after the first year.

As a corollary and practical matter, the only reduction under the guidelines that a defendant can count on is one the prosecutor requests in exchange for providing substantial assistance in the investigation or prosecution of someone else. While such deals often are made after indictment, they may not be as sweet as those Fitzgerald offers before indictment. And they won't be available to those who go to trial.

I haven't even included in this calculation the possibility that Fitzgerald is threatening those who refuse deals with indictments for Espionage Act violations or disclosure of classified information.. That would raise the stakes even higher.

Those who are indicted tomorrow will make grand claims of innocence. They should. They are innocent under our system until a jury or judge declares them guilty.

But I suspect those who make such pronouncements tomorrow will be those for whom Fitzgerald's deals included jail time.