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Sentencing panel to weigh economic crime penalties

 Associated Press
August 15, 2014
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The federal panel that sets sentencing policy announced Thursday that it plans in the coming year to consider changes to sentencing guidelines for some white-collar crimes.

The U.S. Sentencing Commission, which earlier this year reduced guideline ranges for drug crimes, unanimously approved its latest set of priorities. The top priority will be continuing to work with Congress on reducing the scope and severity of mandatory minimum penalties, but another goal will be evaluating the fairness of sentences for economic crimes like fraud, the commission said.

The panel had been reviewing data for several years, but plans to hear more from judges, victims and others to decide "whether there are ways the economic crime guidelines could work better," the commission's chairwoman, Patti Saris, a federal judge in Massachusetts, said in a statement.

Defense lawyers who long have sought the changes say a window to act opened once the sentencing commission cut sentencing guidelines for drug crimes, clearing a major priority from its agenda.

It's unclear what action the commission ultimately 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. But the discussion about tweaking sentences for economic crimes comes as some federal judges have chosen to ignore the existing guidelines in some cases and as the Justice Department, which has said it welcomes a review, looks for ways to cut costs in an overpopulated federal prison system.

Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency's sake. Advocates arguing that white-collar sentencing guidelines are "mixed up and crazy" could weaken support for keeping them in place, said Ohio State University law professor Douglas Berman, a sentencing law expert.

The commission's action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say. The commission this year agreed to reduce guideline ranges across drug types and then apply that change retroactively to the current inmate population, a move that could permit tens of thousands of drug-dealing felons to seek an early release. The commission says no inmate would be freed early under the change unless a judge determined that the release would not jeopardize public safety.

Just as drug sentences historically have been determined by the amount of drugs involved, white-collar punishments typically are 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 financially benefited 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.

"It's real easy to talk about 10, 15, 20 years, but when you realize just how much time you're talking about ... it's too much," said Washington defense lawyer Barry Boss, an ABA task force member.

No one is talking about 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 takes into account the broad continuum of economic crime and that better differentiates between, for example, a thief who steals 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," Columbia University law professor Daniel Richman said.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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