Saturday, October 25, 2008
The ABA's recent sentencing institute was packed full of wonderful discussion on the effect of Booker, Rita, Gall, and Kimbrough, as well conversations on many other issues related to sentencing. Just a few comments, related to white collar matters:
At lunchtime, Professor Doug Berman of the Sentencing Law & Policy Blog spoke. His theme was that "perspectives matter more than politics." He advocated, in this regard, for "more perspectives." He said that it is "very hard to change people's politics" but noted that it is easier to influence their perspective.
Two afternoon sessions were directly relevant to white collar matters. The first, Sentencing in White Collar Cases: Sarbanes-Oxley, A Five Year Retrospective, was moderated by Anthony Joseph of Maynard Cooper & Gale, PC. Michael Horowitz, a Commissioner on the US Sentencing Commission started with statistical data. David Nahmias, US Attorney from the Northern District of Georgia and Pravin B. Rao of Perkins Coie offered comments on the status of sentencing in white collar cases. It was clear that attorneys had been targets in some of the mortgage fraud cases and that first offenders had received stiff sentences - for example, a 30 year sentence. (see here)
The next panel, one that I moderated, started with Beryl Howell, a Commissioner of the US Sentencing Commission providing statistics on recent white collar prosecutions. For those who were claiming that white collar prosecutions were down, they would be pleased to find that incarcerations had in fact gone up. Further the average prison term of 17 months in 2000 was up to 25 months in 2007 and so far for 2008 running at an average of 27 months. There were many other wonderful statistics offered and I will likely blog on these down the road, but the one that I found the most telling was that there had been an increase in upward departures in white collar cases since 2000.
Attorney Art Leach and Joshua Hochberg (McKenna, Long, and Aldridge) offered the audience a lively discussion that looked at binding agreements, whether charge bargaining would still play an important role in the criminal process, what practitioners should focus on in prepping a white collar case, and what role "loss" calculations might or should continue to play in sentencing. The program, The Future of White Collar Sentencing Practice: What Practitioners Need to Know, ended with the panelists offering thoughts on what changes should be made to the guidelines and what might be on the horizon. For more information on this program see here.