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White-collar fraud sentencing under increased scrutiny

Our immediately preceding blog post discussed the recent sentence hearing of ex-Enron boss Jeffrey Skilling, pursuant to which his prison term was cut by a decade.

As noted by some commentators on white collar crime, the Enron scandal was central to the enhancement of increasingly harsh penalties meted out to defendants facing federal charges in white collar matters. Federal sentencing guidelines have been criticized, as the Wall Street Journal notes, for the tendency of judges “to rely too much on financial-loss calculations” that can bring excessively punitive prison terms to defendants such as Skilling.

The guidelines first appeared in the late 1980s, with judges being compelled to sentence defendants based upon them. A 2005 U.S. Supreme Court ruling increased the discretionary power of judges over the guidelines, and there has been a discernible trend since that time in federal judges sentencing below guideline recommendations in fraud cases.

The guidelines “should be scrapped in their entirety,” says federal judge Jed Rakoff, a well-known national jurist who has heavily criticized them for not fairly conveying “the reality of the crime or the criminal.” Rakoff and many other critics would prefer to simply rely on broad-based factors of equal weight that judges would consider in their discretion.

The U.S. Sentencing Commission seems to be well apprised of guideline criticisms, with that body scheduling a hearing on the matter this September. An American Bar Association task force has been assembled to look at potential revisions to the guidelines, considering especially their role in levying comparatively heavy criminal penalties upon defendants in white collar fraud cases.

Source: Wall Street Journal, "White-collar sentences get a fresh look," John R. Emshwiller, June 19, 2013

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