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Tuesday, November 29, 2011

Rabinowitz on the Incongruity Between Sentencing in Criminal Intellectual Property Cases and the United States Sentencing Guidelines

Aaron B. Rabinowitz has posted Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications on SSRN. Here is the abstract:

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines non-mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders and can. Based on data for federal sentencing cases from 1997-2011, this article presents an empirical analysis of how the Booker decision has changed the way in which district courts imposes sentences on offenders convicted of intellectual property crimes, as well as a discussion of how sentences imposed on intellectual property offenders reflect more societal views of intellectual property crimes in general.

The empirical analysis reveals, inter alia, that sentences imposed on intellectual property offenders deviate from the advisory Guidelines in two out of every three cases; prosecutors seek and judges reduce sentences for intellectual property crimes more frequently than for other comparable crimes; and judge-initiated deviations occur after Booker about twice as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes. These findings suggest that prosecutors’ and judges’ views of intellectual property crimes do not align with the sentences prescribed by the Guidelines for intellectual property crimes, and this article accordingly proposes solutions for harmonizing the advisory Guidelines sentences for intellectual property offenders with the sentences that are actually being imposed based on prosecutors’ and judges’ discretion.

http://lawprofessors.typepad.com/crimprof_blog/2011/11/xxx-rabinowitz-on-the-incongruity-between-sentencing-in-criminal-intellectual-property-cases-and-the.html

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