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August 13, 2014

Noting the push for reforming the fraud federal sentencing guidelines

This lengthy new AP article, headlined "Sentencing Changes Sought for Business Crimes," discusses the on-going push to reform the federal sentencing guidelines for fraud offenses.  Here are excerpts:

The federal panel that sets sentencing policy eased penalties this year for potentially tens of thousands of drug dealers.  Now, defense lawyers and prisoner advocates are pushing for similar treatment for an arguably less-sympathetic category of defendants: swindlers, embezzlers, insider traders and other white-collar criminals.

Lawyers who have long sought the changes say a window to act opened once the U.S. Sentencing Commission cleared a major priority from its agenda by cutting sentencing ranges for nonviolent drug dealers.  The commission, which meets Thursday to vote on priorities for the coming year, already has expressed interest in examining punishments for white-collar crime. And the Justice Department, though not advocating wholesale changes, has said it welcomes a review.

It's unclear what action the commission will take, especially given the public outrage at fraudsters who stole their clients' life savings and lingering anger over the damage inflicted by the 2008 financial crisis.

Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency's sake.  The discussion about revamping white-collar sentences comes as some federal judges have chosen to ignore the existing guidelines as too stiff for some cases and as the Justice Department looks for ways to cut costs in an overpopulated federal prison system....

The commission's action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say.  Just as drug sentences have historically been determined by the amount of drugs involved, white-collar punishments have been defined by the total financial loss caused by the crime.  Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.

A 2013 proposal from an American Bar Association task force would do exactly that, encouraging judges to place less emphasis on how much money was lost and more on a defendant's culpability.  Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually stole money or merely intended to.  The current structure, lawyers say, means bit players in a large fraud risk getting socked with harsh sentences despite playing a minimal role....

No one is seeking leniency for imprisoned financier Bernie Madoff, who's serving a 150-year sentence for bilking thousands of people of nearly $20 billion, or fallen corporate titans whose greed drove their companies into the ground.  But defense lawyers are calling for a sentencing structure that considers the broad continuum of economic crime and that better differentiates between, for example, thieves who steal a dollar each from a million people versus $1 million from one person.

Any ambitious proposal will encounter obstacles.  It's virtually impossible to muster the same public sympathy for white-collar criminals as for crack-cocaine defendants sentenced under old guidelines now seen as excessively harsh, which took a disproportionate toll on racial minorities.  The drug-sentencing overhaul also was promoted as fiscally prudent, because drug offenders account for roughly half the federal prison population.  Tea Party conservatives and liberal groups united behind the change.

In comparison, the clamor for changing white-collar guidelines has been muted. The Justice Department, already criticized for its paucity of criminal prosecutions arising from the financial crisis, has said it's open to a review but has not championed dramatic change. "I don't think there's a political will for really cutting back or retooling the guidelines," said Columbia University law professor Daniel Richman.

August 13, 2014 at 04:18 PM | Permalink

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Comments

How about also taking a look at revamping S.O. restrictions while they're at it.

Posted by: ed | Aug 13, 2014 7:14:45 PM

Yeah! And environmental crimes! and maybe product tampering and assaults and public corruption! In fact, let's just constantly revisit every goddamn nuance and widget of federal sentencing so the Sentencing Commssion can keep telling us how important they are.

Posted by: Wayne-O | Aug 13, 2014 8:24:03 PM

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