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September 8, 2010

"Federal Judges Go Easy On Tax Cheats, Pornographers And Prostitutes"

The title of this post is the provocative heading give to this post at a Forbes blog called "Taxing Matters" and authored by Janet Novack.  Here is an excerpt of the analysis of the latest US Sentencing Commission data (previously discussed here) that follows under this heading:

The latest numbers from the U.S. Sentencing Commission provide new evidence that at least some Federal judges don’t like handing out stiff jail sentences to tax cheats. Since the Supreme Court ruled in U.S. v. Booker in 2005 that the Commission’s tough-on-white-collar-crimes sentencing guidelines weren’t binding, the Commission has tracked the frequency with which judges hand out lighter penalties than the guidelines call for.

In the first nine months of fiscal 2010, federal judges cited Booker to sentence 13.4% of all federal convicts to below guideline terms.  Tax cheats?  Thanks to Booker, they got below guideline sentences 29% of the time.  One of the few things that seemed to offend the jurists more than putting tax cheats away: the very, very long guideline sentences for pornography and prostitution. There, judges used Booker to sentence below range 34% of the time.

But there’s a big difference. In the tax cases where they used Booker to go low, judges handed out a median sentence of just five months — a year less than minimum.  That amount of time can be served in home confinement.  By contrast, the judges who sentenced below the minimum in pornography and prostitution cases still meted out a median prison term of five years — 37 months below the guideline minimum.

Before you decide to cheat on your taxes, however, be forewarned: Two Midwestern tax lawyers told me Wednesday that they haven’t seen such leniency in their cases and believe sentencing varies greatly by region.  Indeed, while below guideline figures aren’t published by type of offense for each district, they are for all offenses. In the Southern District of New York (Manhattan) judges used Booker to sentence below range in 41% of all cases, whereas in Arizona, Nevada and the Eastern District of Texas, judges cut defendants a Booker break only 5% of the time.

Some (very and somewhat) related posts:

September 8, 2010 at 02:25 PM | Permalink


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Bear in mind that both the statutes and the Guidelines specifically direct sentencing judges to consider non-incarceratory sentences for first-time offenders convicted of non-violent crimes. Then they set offense levels that call for jail time in almost every felony case. Booker allows judges to resolve that conflict sensibly.

Posted by: sal | Sep 11, 2010 2:38:14 PM

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