Thursday, October 1, 2009

NACDL's 5th Annual Defending the White Collar Case Seminar - "More Jail, Less Justice - White Collar Sentencing Unhinged From Reality," Thursday, October 1, 2009

Guest Blogger:  Ellen C. Brotman, Montgomery McCracken (Philadelphia, PA)

Moderator:  Gerald Goldstein

Panelists:  Ellen C. Brotman, Evan Jenness, Hon. Jed Rakoff, Alan Vinegrad

The panel started with Evan Jenness who made the important point that we must push back against the government’s loss numbers in complicated financial crimes cases and focus on how to calculate the “realistic economic loss proximately caused by your client’s criminal conduct.” Arriving at this number and persuading the government to accept it before the charges can be critical. Primarily, this strategy permits the sentencing hearing to focus not on the Guidelines calculations but on the characteristics of your client that properly mitigate the harshness of the sentence. Evan focused on United States v. Nacchio, Olis, and Kosky as cases which support a nuanced approach to loss calculations. These cases look at external factors affecting loss including market fluctuations, third party conduct, and residual value in assets.

Alan Vinegrad spoke next about whether there has been a real change post-Booker in sentencing. He had some “scary and sobering statistics” -- fraud sentences are up 69%; bribery sentences are up 150%; tax sentences are up 78%; overall sentencing considerations for economic crimes are up 38%. He explained this based on two phenomena: the increase in the fraud loss table and the new discretionary nature of the Guidelines.

Ellen C. Brotman (me) pinch hit for Amy Baron Evans who was on the injured list but will be back in the rotation any day. I described the process of deconstruction and discussed the NACDL Amicus Brief in United States v. Tomko. The Tomko brief  posits the radical but rational and well reasoned theory that, because the Commission’s review of past practices did not include any cases that resulted in probation, thus ignoring approximately 40% of all past cases in the relevant time frame, the Guidelines are not based on empirical evidence as they apply to first time non-violent offenders. I urge everyone to read the brief and the articles that Amy has published, found on the wonderful, amazing and inspiring Defender website: www.fd.org.

Judge Rakoff spoke next and agreed that Booker has made it harder to sentence but has created a more rationalized process. The judge said that reducing individualized sentencing with its myriad factors to an arithmetic process was “absurd.” He also speculated that the early adherence to the guidelines post-Booker was motivated by fear that the Bush administration would somehow create a legislative backlash. However, the Judge also felt that, for whatever reasons, there was more comfort level with variances now and that issue was where the sentencing energy should be focused.
The panel then turned its attention to the hypothetical and had a lively discussion that fleshed out the issues raised above.

(ecb)

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