Tuesday, November 27, 2007

McFarland - Unpublished

Doug Berman's Sentencing Law & Policy Blog is getting traffic on the 30 year sentence that was affirmed in an unpublished opinion by the Eleventh Circuit. (see posts here and here) And the comments he is receiving are very telling. (see here).  A copy of the opinion and our original post can be found here.

So can a 30 year sentence for a first time white collar offender on a mortgage fraud case be justified.  Many blame the prosecution for asking for this draconian sentence. And then there is also the sentencing guidelines that allow for this sentence.  But I keep going back to the remarks of President Bush when he said of Scooter Libby's sentence that it was "excessive."  I keep wondering how he feels about McFarland's 30 year sentence.   

My recent article on SSRN titled, "The Challenge of White Collar Sentencing" questions the necessity of giving draconian sentences in white collar cases. It looks at whether the attempts to achieve a class-blind sentencing system end up with a disregard for real differences.

But there is something else that I can't help but keep thinking about, and that is the fact that this is an unpublished opinion. A review of a thirty year sentence for a first offender provides nothing new to the legal literature? It is good to see Professor Berman noting how this decision is in tension with the Rita decision. (see here). 

(esp)

http://lawprofessors.typepad.com/whitecollarcrime_blog/2007/11/mcfarland.html

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