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Sentencing Commission to consider changing the sentencing guidelines for white collar crime punishments

The U.S. Sentencing Commission will consider restructuring the framework for setting federal sentences for white collar crimes.

In the wake of Enron, Worldcom and other high stakes white collar crimescandals of the early 2000s, public outrage over white collar crime grew to a fever pitch. Later in the decade, public perceptions of white collar crime were further influenced by the housing market meltdown and subsequent recession.

During these years, there was widespread support for draconian white collar crime sentences, and it was not uncommon for convicted white collar offenders to be sentenced to decades behind bars. Today, harsh penalties continue to be handed down for many of those convicted of white collar crimes. The current federal sentencing guidelines call for numerous sentencing enhancements that end up increasing sentences for white collar offenders significantly.

Yet, white collar offenders are generally nonviolent and unlikely to recidivate compared to those convicted of other types of crimes, even when relatively light sentences are imposed. See generally Recidivism and the First Offender, Research Series on the Recidivism of Federal Guidelines Offenders (May 2004). With the federal prison population standing at 214,713 as of Sept. 11 2014, according to the Federal Bureau of Prisons, and the federal corrections budget having grown by more than $2 billion over the last decade, it may be time to rethink the efficacy of overly punitive sentences for white collar crimes. The public may finally be ready to accept more reasonable white collar sentences.

On August 14, the U.S. Sentencing Commission identified its top priorities for the coming year, and among them was exploring the possibility of adjusting downward the federal sentencing guidelines for many white collar crimes. Specifically, the Sentencing Commission will be mulling over Section 2B1.1 of the sentencing guidelines (along with related provisions) as it pertains to fraudand other white collar offenses.

Currently, sentences recommended under the guidelines for white collar offenses are largely a function of the financial loss sustained in the fraud: the larger the loss, the longer the recommended sentence. However, many expert commentators say that fairer guidelines would rely more heavily on the culpability of the offender in determining the sentence for a white collar crime. In its current cycle, the Sentencing Commission will look into the possibility of shifting white collar offense sentencing guidelines to focus on the level of criminal culpability rather than a calculation of financial loss.

Earlier this year, the Sentencing Commission successfully lowered sentencing guidelines for many drug crimes. This was not only a move to help curb the out-of-control costs of the federal prison system, but also to make sentences fairer in light of changing societal attitudes toward drugs and the nature of the crimes as nonviolent. The same logic could just as easily be applied to most types of white collar offenses.

The potentially lower white collar crime sentencing guidelines are good news for those accused of committing white collar offenses. But, there is no guarantee that the white collar sentencing framework will be revamped, and even if it is, judges in individual cases still ultimately have power to go outside the guidelines for good reason. If you are facing charges for a white collar offense, contact a criminal defense lawyer – your attorney can help you secure the best possible outcome given the facts of your case.

Keywords: white collar, guidelines, sentencing