Monday, April 30, 2007
Stephanie Martz, White Collar Crime Project Director at the National Association of Criminal Defense Lawyers (NACDL), guest blogs a six part series on the recent White Collar Crime Track at the NACDL Cincinnati Conference:
Session 3: Sentencing Update – White Collar
Amy Baron-Evans, Sentencing Resource Counsel for the Federal Defenders, did a terrific presentation on both new amendments to the Guidelines and case/litigation developments. She began by noting that after Booker, there is no need to wait until Congress finalizes the proposed Guideline amendments that will be sent to the Hill on May 1 in order to argue them.
One of the most relevant new Guidelines for white collar lawyers is that implementing the Crime Victims Rights Act. Baron-Evans noted that while judges have rejected definitions of "victims" that include plaintiffs in civil class-action suits (derivative suits are harder, though), victims of acquitted or uncharged conduct, and certain types of collateral victims, lawyers should be chary of attempts to push the definition further.
Another helpful new (proposed) Guideline is the policy statement in 1B1.3, "Sentence Reduction." Courts may now consider terminal illness (which greatly expands the old "death rattle" standard); permanent medical conditions that require care by someone else, including age-related deterioration; and situations in which the only family member capable of caring for a minor has died or become incapacitated (in the past, foster care was often considered good enough).
In terms of litigation, Baron-Evans repeated the message that I’ve often heard her impart but that bears constant reminder because it is so important: Always go back to the "shalls" in 3553 – especially, that a sentence "shall" not be greater than necessary to meet the goals of criminal punishment. In that vein, white collar lawyers should be mindful of raising – starting with the pre-sentence report, that all-important document that determines so much – the factors that predict reduced recidivism: age, stable employment, education level, marriage, abstinence from drugs, first-time offender status, poor health, and emotional problems that are treatable. Lastly, remember that no statute requires the government alone to move for substantial assistance departures.
(sm/ posted and link by esp)