The ABA urged the U.S. Sentencing Commission Feb. 16 to fix the advisory federal guidelines for the sentencing of high-loss economic crimes, pointing out that the guidelines have been criticized in recent judicial opinions as “patently absurd on their face” and a “black stain on common sense.”

James E. Felman, co-chair of the ABA Criminal Justice Section’s Committee on Sentencing, testified before the commission that judges would be willing to follow the guidelines if the guidelines made more sense.

He explained that the present guidelines, because they have been relentlessly ratcheted upward since they were put in place in 1987, routinely call for sentences at or near life without parole for defendants who typically have no criminal history. As a result, some judges opt to impose significantly lower sentences while others adhere to the guidelines, creating a regime in which the punishment turns as much on the philosophy of the sentencing judge as it does on the facts of the offense.

The ABA House of Delegates addressed the issue at the February Midyear Meeting by adopting a resolution urging the Sentencing Commission to complete a rigorous and comprehensive assessment of the guidelines for all economic crimes, particularly those involving high loss amounts. An assessment is intended to ensure that the guidelines are proportional to offense severity and that they adequately take into consideration individual culpability and circumstances, Felman said.

Basing his comments on the newly passed policy, Felman specifically suggested that the commission:

•re-evaluate the emphasis on both monetary loss and multiple specific offense characteristics that, in combination, tend to overstate the seriousness of some offenses;

•place greater emphasize on mens rea and motive in relation to an offense, the defendant’s role in the offense, where and to what extent the defendant received a monetary gain from the offense, and the nature of the harm suffered by victims of the offense; and

 •examine ways that states with sentencing guidelines systems address economic crimes.

The ABA testimony was presented during a hearing focusing on implementation of congressional directives in two major laws enacted last year: the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Patient Protection and Affordable Care Act.

The new laws, according to Felman, call for yet more upward ratcheting of the penalties for economic crimes that include health care fraud and securities and bank fraud. He pointed out that the Department of Justice recently announced its concerns that the guidelines have lost the backing of a large part of the judiciary and indicated that the commission should determine whether reforms are needed.

He cautioned, however, that the commission should begin to revisit the guidelines not with an idea of what it thinks Congress or the Justice Department want but also with what the judiciary will respect and follow.

During the hearing, witnesses representing federal prosecutors and public defenders agreed that a comprehensive review of the guidelines is needed.

Preet Bharara, U.S. attorney for the Southern District of New York, expressed that there are not consistently tough and fair outcomes, particularly in the context of high-loss, large–scale fraud cases.

Hector Dopico, supervisory assistant federal public defender for the Southern District of Florida, maintained that none of the evidence suggests that the fraud guidelines produce sentences that are too low to satisfy the purposes of sentencing.

 

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