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February 22, 2007

A informed suggestion that FSG for white-collar offenses are presumptively unreasonable

I noted here two new Yale Law Journal's Pocket Part pieces exploring the severity of modern white-collar sentences.  Though both pieces have various flourishes, I found especially notable these first two sentences from the commentary by Andrew Weissmann and Joshua Block:

At the margins, the current Federal Sentencing Guidelines for fraud and other white-collar offenses are too severe.  Even when a corporate leader has engaged in massive fraud affecting thousands of people, such as what occurred at Enron, sentences of twenty or more years hardly seem necessary to satisfy the traditional sentencing goals of specific and general deterrence — or even retribution.

These lines are notable particularly because co-author Andrew Weissmann, who's now an attorney at Jenner & Block, formerly served as Director of the United States Department of Justice Enron Task Force.  So, by my lights, the former director of DOJ top white-collar task force views the "current Federal Sentencing Guidelines for fraud and other white-collar offenses" as too severe and "greater than necessary" to serve the purposes of punishment set out by Congress in 3553(a)(2).  That seems like pretty strong evidence that all guidelines sentences for white-collar offenses ought to be considered presumptively unreasonable, and certainly not presumptively reasonable.

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Why is a 20 year sentence for a defendant whose criminal conduct has directly harmed, in many cases severly and irreversibly harmed, thousands of people unreasonable at all, let alone presumptively unreasonable? I'm a criminal defense attorney and usually am in favor of all kinds of sentence reductions - reductions for defendants who make everyone's skin crawl. But people like Skilling and Ebbers are the worst of the worst. Their actions are just as bad as if they had individually swindled each victim out of his or her home or pension plan - plans the victims put years and years into, and which they will never ever recover.

White collar sentences are the ONE area of the FSG that are dead-on right. If anything, most corporate crooks get off way too LENIENT, via charging bargaing and reprehensible tactics like "extraordinary restitution," allowing rich guys to buy their way out of prison sentences.

If we spent half the timr we currently spend on white color sentences on nonviolent drug offenders, or even "violent" property crime offenders, the world would be a better place.

Posted by: Anon | Feb 22, 2007 8:07:23 PM

Skilling didn't swindle anyone. You got your facts wrong. Perhaps Weissmann is feeling remorse for his outrageous conduct, and the outrageous conduct his inspired, as member of the Enron Task Force.

One of the biggest problems with overly harsh sentencing, in all contexts, is that it provides an important link in a deadly vicious cycle. Given the disparity between the sentence prosecutors can offer during the plea “bargaining” process and the severity of the sentence risked by going to trial, the very legitimacy of the criminal justice system is undermined. That is, not only are pleas and cooperation agreements suspect given the extreme leverage this disparity provides the prosecutors, but convictions after trials based in any part on “evidence” given by those same pleaders and cooperators are also suspect. And consider all those with exculpatory evidence who are simply coerced into staying silent. The system is unreasonable, and there is nothing presumptive about that.

Posted by: Anonymous | Feb 23, 2007 12:17:31 AM

Reasonable in light of what? Congressional sentencing policy? General theories of retribution and/or deterrence? What seems right to the public at large? To the reviewing court? To law professors?

Posted by: Anonymous | Feb 23, 2007 1:07:19 AM

Funny, Weissmann never said that when he headed the Enron Task Force. I guess where you stand depends on where you sit.

Posted by: Marc Shepherd | Feb 23, 2007 8:14:37 AM

Guidelines Math
1. defraud over 50 victims of $19 million, go to trial and lose, face a maximum of 121 months in prison (if you are Jamie Olis, defraud numerous victims of $79 million, but get your 24 year sentence reduced to 6 years)
2. possess a firearm and a relatively small amount of drugs as a convicted felon, have a criminal record, but never served more than 6 months before the offense, get sentenced to the maximum 120 months (with a Guidelines range of 120 - 150 months that exceeds the statutory maximum of 120 months) and get no reduction despite your efforts at rehabilitation. (see, U.S. v. Oglesby, No. 05-6528 (6th Cir. 2007) [disclaimer: I represent Mr. Oglesby]
Apparently the Sentencing Commission's math is that 1 gun in the possession of a young, black man is the equivalent of millions of dollars of fraud by a nice "white-collar" criminal. Yeah ...THAT should be accorded a presumption of reasonableness!

Posted by: Sumter L. Camp | Feb 23, 2007 10:49:32 AM

Yup, this is the problem with Booker's reasonableness review. We've had conflicting views on whether white collar convicts should be treated more or less severely than their "counterpart" drug or firearm possession criminals. We've had someone comment that reasonableness can mean a number of things to a number of people in different positions and perspectives of power. I don't think the opinion of a Task Force Director, who may or may not have agreed with the Guidelines at the "margin" when he even signed on, changes that.

The weighing of injustices and harms "reasonably" gets us into this mess because everyone wants to ratchet up sentences to put them "in line" with the ratcheted up sentences of other offenders. I don't see how this could get fixed with an indirect, self-contradictory Sixth Amendment technical holding about who sentences. There's got to be an Eighth Amendment showdown on *absolute* sentencing length at some point, which Professor Berman has mentioned in relation to the Berger case.

Posted by: | Feb 23, 2007 1:19:05 PM

I am a private citizen and would like to offer a viewpoint from one who does not work in or for the legal system and fortunately have never been personally subjected to any legal course of action. I do believe that there needs to be reform for white collar sentencing. I have come to know a woman (43 year old, mother of one, twice widowed) who is currently serving 87 months in Alderson. She was found guilty of defrauding church members of $1.3 million. All involved that her sentencing was extremely severe given that she was a member of a business venture who personally invested $200,000 of her own money; has never been convicted of a crime; and was as much a victim as other investors who lost their money. She is serving time with other women who were convicted of defrauding people of millions and their sentences by contrast are 1-2 years. What is wrong with this picture? Judge Roger Titus seemed to take personal glee in this case, likening Ms. Hodge to the Unabomber and suggesting she had psychological problems. His solution? Throw her in prison for 87 months with repeat offenders and drug addicts. I find this a gross miscarriage of justice and firmly believe that a better option would have been a much shorter sentence or even parole allowing Ms. Hodge to earn a living and pay restitution to the victims (most of whom lost a maximum of $2500.00). While I believe strongly in punishment for criminals, our system does not seem to have a fair method of the time fitting the crime.

Posted by: Karen D. Swim | Feb 24, 2007 8:02:05 PM

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