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November 17, 2011

"Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications"

The title of this post is the title of this new piece on SSRN authored by Aaron B. Rabinowitz.  Here is the abstract:

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines non-mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders and can.  Based on data for federal sentencing cases from 1997-2011, this article presents an empirical analysis of how the Booker decision has changed the way in which district courts imposes sentences on offenders convicted of intellectual property crimes, as well as a discussion of how sentences imposed on intellectual property offenders reflect more societal views of intellectual property crimes in general.

The empirical analysis reveals, inter alia, that sentences imposed on intellectual property offenders deviate from the advisory Guidelines in two out of every three cases; prosecutors seek and judges reduce sentences for intellectual property crimes more frequently than for other comparable crimes; and judge-initiated deviations occur after Booker about twice as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes.  These findings suggest that prosecutors’ and judges’ views of intellectual property crimes do not align with the sentences prescribed by the Guidelines for intellectual property crimes, and this article accordingly proposes solutions for harmonizing the advisory Guidelines sentences for intellectual property offenders with the sentences that are actually being imposed based on prosecutors’ and judges’ discretion.

November 17, 2011 at 02:16 PM | Permalink

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Comments

When prosecutors seek sentences below the guidelines for intellectual property offenses, the vast majority the time it is to reward defendants for cooperation. How can Professor Rabinowitz thus conclude that "prosecutors’ views of intellectual property crimes do not align with the sentences prescribed by the Guidelines for intellectual property crimes." This is a distortion of the data. And it is one put forward repeatedly by defense attorneys, academics and the Sentencing Commission. The Commission data that in 27% of cases, prosecutors request a below guideline sentence does not mean that prosecutors or the Department of Justice view the guidelines in those cases as inappropriate absent substantial assistance or participation in a fast track program.

Don't you agree, Doug?

Posted by: Prosecutor | Nov 17, 2011 4:34:09 PM

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