« What does (closet libertarian?) GOP front-runner Donald Trump now really think about the drug war and criminal justice reform and Prez clemency? | Main | Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination? UPDATE: Gov Sandoval does not want to be considered! »

February 24, 2016

"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki.  Here is the abstract:

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups.  In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change.  These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications.  This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.

The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences.  It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress.  This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant.  We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range.  The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president.  Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.

The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.

February 24, 2016 at 02:50 PM | Permalink


This study is unhelpful, and I'm being kind. Federal sentencing involves vigorous departure and variance arguments from the parties. Here, this was not replicated. Further, by presenting the case as a binding plea agreement case, the study authors essentially removed a great portion of judicial discretion. Obviously, there would be no sentence below or above the range. And there was no basis presented for a sentence of more than the low end of the range. In the absence of any advocacy for a sentence above the low end, most judges would of course default to imposing the low end for this non-violent first time offender whose crimes were not described as having an exceptionally egregious effect on the victim. Only someone ignorant of the way federal courts work would be surprised at the outcome. They should have inserted some egregious factors into the PSR, and also supplied fake sentencing papers from the parties, with the Government arguing for a higher sentence.
That might have been more revealing. Better yet, do that and refrain from making the case a binding plea agreement matter.

Posted by: USPO | Feb 24, 2016 10:16:32 PM

No "trial penalty" involved or even mentioned either. My spouse is serving an extremely long and harsh sentence after going to trial on fraud charges. No traction on appeals...so appears to be stuck, possibly for life as first time non-violent offender (Will he be able to serve his sentence? 2034 is a long way away for a 52 year old)
There is talk talk about reducing the US prison population, changing harsh guidelines etc, but so far I'm seeing little hope for him. Policy always seem to look forward, rarely back. Even if guidelines are reduced/changed, it feels like society has thrown him away.

Posted by: folly | Feb 26, 2016 10:30:23 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB