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March 1, 2010

AAG Breuer's comments about sentencing disparities at ABA white-collar crime event

I had the good fortune to hear in person the remarks by Lanny A. Breuer, Assistant Attorney General for DOJ's Criminal Division, at the American Bar Association National Institute on White Collar Crime in Miami late last week. And now, having finally found the full text of his remarks on-line here, I can spotlight the spotlight he put on white-collar sentencing disparities through these comments:

As you may know, the Attorney General established a Sentencing and Corrections Working Group last year to take a fresh look at federal sentencing and charging practices, prisoner re-entry issues, alternatives to incarceration, and unwarranted disparities in federal sentencing.  He cares deeply about such issues, as do I.

Our goal in this effort is a sentencing and corrections system that protects the public, is fair to both victims and defendants, eliminates unwarranted sentencing disparities, reduces recidivism, and controls the federal prison population.  Low-hanging fruit, right?  Well, the goals may be lofty, but I think we’re up to the challenge....

As you know, the sentencing guidelines continue to provide us with a sentencing baseline in all federal criminal cases.  However, Sentencing Commission data shows that the percentage of defendants sentenced within the guidelines has decreased in the wake of the Booker line of cases. Although the full impact of recent trends in sentencing jurisprudence is still unclear, these developments must be monitored carefully.

We are especially concerned about increased disparity in white-collar sentencing.  It is not uncommon for a health care fraud defendant to be sentenced to 15 or more years in one district court, while, in the same week, another defendant in another court involved in a larger fraud is sentenced to a very short prison term.   A few weeks ago, the Ninth Circuit affirmed a 25-year sentence for a fraudster involved in a $40 million fraud just a few days after another defendant on the East Coast who had been involved in a $1 billion fraud was sentenced to just five years.

We must determine the reasons for these disparities. Public trust and confidence are essential elements of an effective criminal justice system.  Our laws and their enforcement must not only be fair, they also must be perceived as fair.  Accordingly, we must create a system where the factual basis for sentencing in a particular case is clear to all parties and to the public, and where the sentences themselves are truly commensurate with the crime committed.

The work of the Sentencing and Corrections Working Group is an important step in that direction.

Though I dislike reference to a few sentencing anecdotes as proof of increased sentencing disparity, I do not really dispute AAG Breuer's concern about increased sentencing disparities in the white-collar arena.  Well-meaning but widely different perceptions of the need for and purposes of various forms of punishment in the white-collar arena are common, and thus it is not at all surprising that federal judges of different backgrounds in different parts of the country may assess the sentencing commands set forth by Congress in different ways in white-collar cases. 

But, as is true in many sentencing settings, expressing a concern about disparities is a lot easier than engineering effective remedies that will not risk creating bigger problems.  Consequently, I remain very eager to see and hear what DOJ's Sentencing and Corrections Working Group has to say about needed sentencing reforms in the months ahead.

March 1, 2010 at 08:14 PM | Permalink

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"... expressing a concern about disparities is a lot easier than engineering effective remedies that will not risk creating bigger problems."

Here is a modest but guaranteed suggestion. Arrest the entire lawyer hierarchy, 15,000 cult criminals. Put them on trial for an hour, where the sole evidence will be their lawyer utterances. Execute them upon the reading of the verdict. Right in the court basement. Shoot them in the head. Next arrest their lieutenants, about 150,000 more lawyers in position of responsibility, especially in the government. They go to federal prison. If any resists, shoot on the spot.

Once the lawyer obstacle to crime control has been removed, arrest the repeat offenders and the mass criminals. Crime is over in the United States. Our growth rate is 9% not 3%. You can drop a $20 bill on the side walk in the South Bronx. Return in two weeks. There is a note, that a former criminal found it and left it with the adjoining shop keeper awaiting your return for it.

The same instantaneous results take place within weeks for all other social problems, educational lags, school discipline, school achievement, bastardy, poverty, substance abuse, the divorce rate, HIV, illegal immigration, welfare, pollution, unemployment, economic crisis, war, injustice, feminism. Gone in 60 days once the lawyer criminal cult that infiltrated our government is stopped.

Posted by: Supremacy Claus | Mar 1, 2010 9:47:13 PM

"But, as is true in many sentencing settings, expressing a concern about disparities is a lot easier than engineering effective remedies that will not risk creating bigger problems."

Step 1: Overrule Blakely and Booker.

Posted by: Kent Scheidegger | Mar 1, 2010 10:40:12 PM

Prof., You were on a panel with a sentencing Commissioner, what did she have to say about out-of-range sentences in White Collar cases? It's safe to say USSC statistics on sentencing aren't "anecdotes", no?

I'm willing to bet (but happy to be proven wrong) that White Collar sentences vary and depart much more frequently than other cases. That wouldn't be an "anecdote".

Enquiring minds want to know.

Posted by: Ferris Bueller | Mar 2, 2010 8:29:50 AM

Ferris, the statistics presented from the USSC (which will be appearing soon in an FSR issue), were very interesting and dynamic. They did show lots of non-guideline sentences in white-collar cases. But that is NOT the same as disparity --- if similar cases are all receiving similar variances, then we have consistency, not disparity.

Posted by: Doug B. | Mar 2, 2010 9:15:49 AM

That's illogical, Prof. If we were comparing the actual average number of months given for, say, drug trafficking and bank fraud, then you'd have a point.

But the measured variance/departure rates (non-gov't sponsored) from the respective guideline ranges can be compared directly from guideline to guideline and when, as I suspect from your coy response, those wealthy, white defendants are getting a break from the guideline range much more often than the black or hispanic drug trafficker - that is most definitely disparity (you could give us a hint since you presumably have seen these numbers). Further, you know as well as I that the variance/departure rate (non gov't sponsored) differs wildly by region as well with sentencing judges in the 5th Circuit imposing within range sentences at a much higher rate than those in the 2d Circuit. Again, disparity.

Secondly, While I'm now pretty comfortable with my assumption that more White Collar cases get a break from the guidelines, I would be very surprised if the variance/departure rate for White Collar cases is much more than 30% (or double the 15% the USSC consistently shows for all cases), so that leaves, at least, 70% of cases that are not "consistent" with those getting breaks. In fact, using the term "consistent" in this context is mind-boggling. How is it "consistent" when the vast majority of sentencing courts still sentence within the guidelines and a (growing) but smaller minority go there own way?

You very clearly approve of this outcome - which is fine and there may be arguments for such a position (especially if you are a defense attorney outside of the 5th Cir.) - but "consistency" ain't one of them.

Posted by: Ferris Bueller | Mar 2, 2010 10:03:30 AM

Ferris, as will most data, the data on white-collar sentencing is so dense and dynamic, I do not want to try to summarize it in this small space. Suffice to say that, in fact, the variance/departure rate for White Collar cases IS MUCH more than 30% for cases involving LARGE losses. But, again, this fact alone does not show disparity, especially because factors like criminal history AND plea discounts AND other distorting factors come in to play (especially since whites also commit lots of drug offenses and many minorities also get sentenced for white-collar offenses).

In very short form, the biggest "disparity" showcased in the white-collar data is the HUGE difference between the cases sentenced after a plea and those sentenced after a trial conviction. Would you call this kind of different "disparity"? If all plea cases (which is roughly 95% of the total) are sentenced similarly leniently and if all trial conviction cases are sentenced similarly harshly, is this evidence of consistency or disparity? And what if we also discover that white defendants tend to make better deals with (typically white) prosecutors even among the set of plea cases? And what if in one cases we had actual loss in the guideline calculation and the other cases involved gain and/or intended loss? And what if and what if and what if....?

This is not meant as a defense of the status quo, but rather as an effort to encourage you to try to make a more refined assessment of what we know (and do not know) about the status quo based on a few anecdotes or limited statistics.

Posted by: Doug B. | Mar 2, 2010 12:00:19 PM

I'm sorry, but as long as no one considers indicting the likes of Obama, Paulson, Greenspan and Bernanke for bankrupting the nation (and walking away with a lot of money in the process, much more in disparity than bankers and their bonuses!) you don't need tal disparities ere!

Posted by: CrisisMaven | Mar 2, 2010 12:40:25 PM

I realize your post above is just a thinly-veiled advertisement for your blog, CrisisMaven, but I'm curious: what federal statutes did Obama, Paulson, Greenspan and Bernanke violate?

Posted by: Common Sense | Mar 2, 2010 4:57:33 PM

C'mon Prof! "Large losses"? What does that mean? Defendants getting 20 or more levels on the 2B1.1 table? What? all half-dozen defendants per year? I'm sure the departure/variance rate at the higher loss levels is "distorted" because the pool of available data is smaller than dividend on Greek Treasury Bonds.

What about the departures in the $30K-$120K wheelhouse of the 2B1.1 guideline? That's where we can talk disparity if the variances are cresting 10% more than the GL's in general.

Were those plea vs. trial rates adjusted for loss and other factors (like role)? If not, I am hardly surprised at the difference - nor should anyone be. Of course the gov't piled-on with relevant conduct. And no, that's not sentencing disparity (while it might be an issue of prosecutorial ethics), it's apples and oranges.

And how exactly can I make a reasoned judgment about this phantom data? And what is "White Collar" anyway according to the USSC? And why does my cat insist on eating plastic wrappers despite five trips to the vet?

These are important questions.

I'm starting to get the same feeling about this "data" that I did about that judge's survey you were touting last week from Cleveland --

-- or I would if you'd stop being stingy and share it with us all. ;)

Posted by: Ferris Bueller | Mar 2, 2010 5:28:38 PM

Ferris, the data charts provided by the USSC will be in a forthcoming FSR, and I cannot readily summarize them (nor do they have answers to all your goodquestions). To the extent that you ask lots of good additional data questions, why are you badgering me rather than the USSC and/or DOJ? I lack the funding and the ability to do all the data runs you'd rightly like to see, and it is a real shame we do not get your questions regularly answered by the USSC and DOJ.

While we both await better data, I want to understand what you define as apples and what you define as oranges. It seems from you first big comment that you think that comparing variances from fraud guideline to drug guideline is apples to apples, but thereafter you suggest comparing outcomes from plea cases and from trial cases for the same guideline is comparing apples to oranges? What is the basis for your baseline claim here (and are you essentially asserting that even huge sentencing "disparities" based on exercising trial rights is justified)?

I share your concern about how data is collected and compared, but I have been complaining about this reality for years in this space. And, even more worrisome, Ferris, is the tendency for you and the USSC and others to use the guidelines as the inherent baseline for measuring "disparity," especially given that some (many?) guidelines the USSC itself admits are badly flawed (such as the crack guidelines and the career offender guidelines).

Good data is much better than anecdotes, but bad data is not much better, and even separating good and bad data is a challenge (and is often done by people with a conscious or unconscious agenda). My point throughout this discussion is to encourage everyone to be extra cautious before coming to firm conclusions AND to also encourage everyone to encourage the USSC and DOJ to try to be transparent in their data collection and analysis.

As for your cat, you have my sympathies.

Posted by: Doug B. | Mar 2, 2010 6:17:50 PM

The focus should shift from the act to the person. The act is useful as a guide to sentencing only to the extent it reveals the nature of the person. So the repetition of several low damage acts reveals more than a single very damaging act. Status crimes should be reenacted, not the status of alcoholism, but of repeat offender. Sentencing guidelines addressed acts. As a side effect they dropped crime by increasing the incapacitation times of the person. Imagine a scheme that has incapaciation of the person as a primary goal, and not just as a virtuous side effect.

Nor is this suggestion one of future forecasting. It is one of calculating the current status of the person by the recent past acts, making that validated status the real crime.

Posted by: Supremacy Claus | Mar 2, 2010 7:00:24 PM

Ironic. "...the biggest "disparity" showcased in the white-collar data is the HUGE difference between the cases sentenced after a plea and those sentenced after a trial conviction..."

The person going to trial is more likely to be innocent than the one taking a plea deal. This is more evidence of the garbage nature of the trial.

1) Comes from the disputation method of Scholasticism, a church philosophical movement.

2) uses the gut feeling of twelve strangers off the street to detect the truth, after excluding those with knowledge. This has the scientific validity of a seance from the turn of the last century, replete with chain rattling and screaming.

3) Evidence in the law is unrelated to evidence in science except via a paid off expert. The trial is a contest of fairy tales spun by each lawyer.

4) Witness testimony without corroboration with physical evidence is usually a lawyer implanted false memory, and worthless.

5) The real and only purpose of the trial is to generate lawyer fees.

6) Appellate reviews address errors of law and not of facts. This is about procedural mistakes, and aims to generate worthless lawyer make work.

Posted by: Supremacy Claus | Mar 3, 2010 3:43:40 AM

Prof: When you compare departure/variance rates from guideline to guideline you can see at least two things: (a) in the case of crack (and perhaps other GL's) you can see that courts are reacting to problems with the guideline itself (and, as you note, problems that the USSC also admits); or (b) you can see disparity based on other aspects (such as race and class) that are inherent in certain crimes (frauds over a certain value, child porn). I think comparing departure/variance rates from 2B1.1 to 2D1.1 is more often in the second category.

With regard to trial vs. plea, I am at a disadvantage because I still don't know if the data you saw controlled for factors such as loss and role. If it did then you might have a point, if it did not then it is most definitely a case of apples and oranges since SOC's like loss, role, and victim enhancements completely change the complection of any two cases that may be charged under the same statute but are otherwise substantially different offenses (and often, offenders).

Also, I think the USSC puts out a lot of useful data. Certainly more than the DOJ -- and certainly more than the defense bar uses when it touts Booker "success". While you rail on Lanny for using "anecdotes", what empirical evidence does the pro-Booker bloc have to show for the efficacy of their position? To me, if someone is truly concerned about "consistency", lack of disparity, or basic fairness in the federal sentencing system, then there is little to show that Booker achieves much on the macro level even if it does provide some "interesting anecdotes" on the micro.

The cat is pleased you care.

Posted by: Ferris Bueller | Mar 3, 2010 8:40:04 AM

I agree with you . Now all became clear, I thank for the help and I hope to see more such articles.

Posted by: christian louboutin | Dec 13, 2010 1:41:52 AM

Prof: When you compare departure/variance rates from guideline to guideline you can see at least two things: (a) in the case of crack (and perhaps other GL's) you can see that courts are reacting to problems with the guideline itself (and, as you note, problems that the USSC also admits); or (b) you can see disparity based on other aspects (such as race and class) that are inherent in certain crimes (frauds over a certain value, child porn). I think comparing departure/variance rates from 2B1.1 to 2D1.1 is more often in the second category.

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