Friday, March 17, 2006

White Collar Sentences Are Up

The hot topic in sentencing right now is the United States Sentencing Commission's post-Booker report.Professor Doug Berman's blog has been reporting on this document (see here). Unfortunately we can't give you the link, because as pointed out by Professor Berman, it is suddenly missing from the US Sentencing Commission's website and is no where to be found. (see here).  But assuming it reappears, here are some comments regarding the report and white collar crime.

There is a good bit of data provided about the Theft & Fraud Guidelines (2B1.1) scattered throughout the document.  And I even found the words "white collar crime" mentioned on page 76 of the report, but what is included within the term is not mentioned. Was it limited to fraud/theft? Did it include antitrust?  Did it include mail fraud that served as predicate acts for RICO? 

Page 74 recaps some significant data related to the fraud/theft guidelines.  It states:

"There likely are two factors contributing to the increased rate of imprisonment for theft and fraud offenders.  First, statutory and guideline penalties increased for many fraud offense as a result of the Commission's Economic Crime Package of 2001, the 2002 Sarbanes-Oxley Act and other recent legislation.  The proportion of cases sentenced under USSG s 2B1.1 that are subject to the higher base offense level of level seven under the guideline increased from 0.7 percent post-PROTECT Act to 13.7 percent post-Booker.  Second, the government may be prosecuting more serious economic crimes.  The amount of economic loss involved in theft and fraud cases has increased.  The medium loss amounts for cases with loss amounts sufficient to trigger a sentence increase from the loss table in USSG 2B1.1 increased during the three time periods from $38,060 pre-PROTECT Act, to $41,595 post-PROTECT Act, to $54,566 post-Booker.  These median loss amounts depict a steady increase in offense severity.  Additionally, the victim table at USSG 2B1.1(b)(2) is being applied at a steadily increased rate.  The victim-related increases applied to 9.9 percent of USSG 2B1.1 cases pre-PROTECT Act, 13.9 percent of cases post-PROTECT Act, and 16.7 percent of cases post-Booker."

To me this kind of sounds like the inflation and increase in the housing market down in the St Pete, Florida area. And if it is nothing more than inflation, shouldn't there be adjustments to the loss?  And what about the loss in some areas being higher than other areas ?  Did someone say the purpose of the sentencing guidelines was to achieve uniformity in sentencing? The bottom line - sentences are up.  So for all who were afraid that giving the judiciary some discretion would result in lower sentences, you better be looking for a new song to sing.


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