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December 20, 2008

Good reads for sentencing fans in The Champion

Sep08spI just noticed that much the September issue of the NACDL's journal, The Champion magazine, is available at this link.  The issue is focused on white-collar crimes and includes a number of pieces that should be of special interest to sentencing fans.  For example, Evan Jenness has this long and detailed piece dealing with federal sentencing guideline calculation issues titled "Gaining the Upper Hand in Arguing Loss in Securities Fraud Cases."

Though not focused on only white-collar matters, of particular interest for sentencing fans in this issue is this fascinating Q&A interviewwith now-former US Sentencing Commissioner John Steer.  Here is one especially notable tid-bit from the interview on the topic of relevant conduct:

The Champion: Almost 20 years ago, you and Judge Wilkins wrote the article declaring relevant conduct the “cornerstone” of the guidelines. The Apprendi line of cases that led to the merits opinion in Booker, and ultimately to its remedial opinion declaring the guidelines advisory, raised new questions about the fairness of punishing defendants for unconvicted conduct. Do you think that relevant conduct should still be the cornerstone? Would you modify or change the relevant conduct rules? What do you think about using acquitted conduct at sentencing?

Steer: I believe “relevant conduct” is still a cornerstone in the construction of a just and effective sentencing policy.... That said, I think some changes to Section 1B1.3, Factors that Determine the Guidelines Range, are in order. The first change I would make, but not the most important, is to exclude “acquitted conduct” from this guideline, and move it to 5K2.21 (Dismissed and Uncharged Conduct) as a judge-discretionary factor....

The second, and more important, change to relevant conduct I would recommend is to decrease the weight given to unconvicted counts that are part of the same course of conduct or scheme under 1B1.3(a)(2) and (3), relative to conduct included within the count of conviction. That is the aspect of the guideline that I find most difficult to defend. Why should, for example, the drugs associated with an uncharged, or charged and dismissed, count be given the same guideline weight as an equivalent drug quantity in the count(s) of conviction? Why don’t we, instead, give less weight to the unconvicted conduct by, for example, counting all the drugs in the convicted counts but only half the drugs in the unconvicted conduct? I believe that, or some similar approach, would address another major unfairness perception about the guideline and, at the same time, provide an incentive to prosecutors to convict on more counts if they want the underlying conduct to count more.

December 20, 2008 at 06:38 PM | Permalink


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