The United States Sentencing Commission is seeking comments – due August 26, 2011.  Here’s a few matters that merit commenting on the following ten priorities:

  • Continuation of its work on statutory mandatory minimum penalties.
  • Continuation of its work with the congressional, executive, and judicial branches of government, and other interested parties, to study the manner in which United States v. Booker, 543 U.S. 220 (2005), and subsequent Supreme Court decisions have affected federal sentencing practices, the appellate review of those practices, and the role of the federal sentencing guidelines.
  • Continuation of its review of departures within the guidelines, including provisions in Parts H and K of Chapter Five of the Guidelines Manual, and the extent to which pertinent statutory provisions prohibit, discourage, or encourage certain factors as forming the basis for departure from the guideline sentence.
  • Resolution of circuit conflicts, pursuant to the Commission’s continuing authority and responsibility, under 28 U.S.C. ‘ 991(b)(1)(B) and Braxton v. United States, 500 U.S. 34 (1991), to resolve conflicting interpretations of the guidelines by the federal courts.

In addition to addressing these points, we urge review of the Commission’s guidelines for fraud offenses.  Mary Price, Vice President and General Counsel of Families Against Mandatory Minimums (FAMM), wrote to WLF expressing the same sentiment.  Here is her letter and call for comments on this important topic:

The United States Sentencing Commission has issued for public comment a list of proposed priorities for the 2012 guideline amendment cycle.

Notably absent from the list is the much anticipated comprehensive review of the guidelines for fraud offenses.  Given the mounting criticism of those guidelines, particularly a loss table that routinely results in stunningly high recommended sentences for first time offenders, we (Families Against Mandatory Minimums) hope you will take the opportunity to write to the Commission and urge it to undertake the review.

As a result of the various amendments to the fraud guideline, monetary loss (actual or intended) has become the single most important factor driving sentence length.  Conversely, the guideline does not account for other important factors that bear significantly on culpability or the purposes of sentencing.  The guideline fails to measure the degree of intent (or mens rea), the scope and duration of the offense, or the extent to which the offender benefited from the crime.  It also neglects to address risk of recidivism or danger posed to society by the defendant.  Finally, it does not provide for consideration of mental illness, diminished capacity, or any other individual characteristics (other than criminal history) that, if conclusively established, can mitigate punishment.

A corporate executive found liable for participating in a large-scale fraud will face a significant sentence.  “[A] typical offender or director of a public company who is convicted of a securities fraud offense now faces an advisory Guideline sentence of life without parole in virtually every case . . . [and] the advisory guideline sentence will be life without parole for virtually any employee convicted of a serious securities fraud causing more than $100 million of loss. . . .”[i]  Economic crime offenders can easily reach a prison term under the guidelines that once had been reserved for the worst of the worst violent and repeat offenders.  This remains true even though fraud offenses carry the lowest level of recidivism when compared to crimes such as robbery, larceny, and firearms offenses.[ii]

Legal experts have roundly criticized these outcomes and judges have weighed in as well, registering their disapproval with outlandish fraud sentences by imposing sentences below the recommended range.  In a series of cases, the Supreme Court has ruled that a district court cannot presume that a sentence within the applicable guidelines range is reasonable and must consult the factors in 18 U.S.C. §3553(a) to arrive at a sentence “sufficient but no greater than necessary” to comply with the purposes of punishment.  When guidelines, such as those for fraud, are not rooted in empirical data, national experience, or any other scientific method, but are instead the product of political dictates, judges give them less deference.

In response, the Department of Justice has expressed its opinion that there now exist two sentencing “regimes,” one overseen by judges who adhere to the guidelines and the other “unmoored” from them.  The Department encouraged the Commission a year ago to undertake a systematic review of the fraud guideline and perhaps amendments to produce a system that will earn the respect of the judiciary.  The Commission declined to add the fraud guideline to its work in 2011.

Commissioners did indicate in February, at a hearing on the Dodd-Frank bill, which the Commission was likely to undertake a multi-year review of the fraud guideline and several commissioners and the Department witnesses discussed the upcoming review in their remarks.

As discussed above, however, the current proposed priorities do not include the review.  We think it particularly important that the Commission conduct the review because some lawmakers are using the issue of below-guideline sentences to suggest that mandatory minimums or mandatory guidelines are needed to curb judicial discretion in this area.

We hope you will weigh in with a letter to the Commission explaining why you think the fraud guideline needs a close look and urging the Commission to delay no longer.  Comments are due by August 26, 2011.

Feel free to contact Mary Price at 202-822-6700 or for more information or assistance.

[i] James E. Felman , The Need to Reform the Federal Sentencing Guidelines for High Loss Economic Crimes, 23 Federal Sentencing Reporter, 138, 138 (December 2010) ; see also Alan Ellis, John R. Steer, and Mark H. Allenbaugh, At a “Loss” for Justice: Federal Sentencing for Economic Offenses, 25 Criminal Justice (Winter 2011).

[ii] Ellen S. Podgor, The Challenge of White Collar Sentencing,  97:3  J. of Criminal Law and Criminology, 758 ( 2007).