Frank A. Rubino , ESQ.

FEDERAL AND INTERNATIONAL CRIMINAL DEFENSE

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Judge Calls For New Sentencing Guidelines

A U.S. District Judge called for more flexible sentencing guidelines at a legal conference in Las Vegas last week. He indicated that the present guidelines have led to irrational sentences in white collar criminal cases. The current guidelines stopped being mandatory based on a U.S. Supreme Court case in 2005, but many judges continue to adhere to them. The guidelines focus on losses caused by the crime and often leads to severe punishments in white collar cases where many people are involved. Even small losses spread out over thousands of people can lead to a decades-long prison sentence.

The current guidelines encourage judges to calculate the losses caused by the criminal activity and to select the sentence that corresponds with the loss. The system is arithmetic and ignores many factors that judges may have considered prior to the release of the guidelines. The U.S. District Judge would prefer guidelines that lay out factors to be analyzed on a case-by-case basis. Such a system would allow judges more leeway in deciding what factors should control the severity of the sentence.

A report filed earlier this year by the U.S. Sentencing Commission called the current guidelines "strong and effective." A roundtable meeting is scheduled this fall to discuss sentencing guidelines in fraud cases, but there is no reason to expect the Commission will make any drastic changes. Recent cases involving financial fraud, mortgage fraud and health care fraud have drawn headlines and led to record-breaking criminal sentences.

Sentencing guidelines are voluntary, but judges are expected to explain any significant deviation from a recommended sentence. A system that allowed greater flexibility and that required judges to analyze all the factors in the case, rather than just the losses that resulted from the conduct, could lead to fairer results.

Source: Reuters, "Rakoff says sentencing guidelines should be 'scrapped'," by Nate Raymond, 11 March 2013

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