Wednesday, August 15, 2012
Frederick Thide has posted Judicial Policy Nullification of the Antitrust Sentencing Guideline (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:
The Federal Sentencing Guidelines provide for special treatment of hard-core cartel activity to ensure that penalties for antitrust crime provide adequate deterrence. The U.S. Supreme Court’s transformational sentencing cases, however, have returned significant discretion to sentencing judges, potentially undermining the policy balance achieved by the Antitrust Guideline. Judicial discretion in sentencing, however, is not unlimited. Rather, judges are required to impose sentences that are “sufficient, but not greater than necessary” to achieve the goals of sentencing, subject to appellate review for reasonableness. This note analyzes whether there is a sustainable basis for judicial policy disagreement with the Antitrust Guideline’s use of a proxy to measure economic harm. This note argues that judicial discretion to vary from the Antitrust Guideline’s harm proxy, appropriately cabined by appellate review, will not undermine antitrust sentencing policy. Finally, this note concludes that judicial discretion may actually enhance other legitimate goals of white-collar sentencing, including moral condemnation.