Frank A. Rubino, ESQ.

FEDERAL AND INTERNATIONAL CRIMINAL DEFENSE

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White collar crime sentencing, Part 2: strident debate emerges

Calling it "a somewhat odd thing to do," a spokesperson for the United States Department of Justice pointed to and decried the suggested changes recently offered up by a federal panel in the realm of criminal sentencing for convicted white collar defendants.

We cited recent developments in that area in our immediately preceding blog post (please see our March 30 entry), noting a sharp divergence of opinion between DOJ officials on the one hand and a diverse band of critics on the other.

White collar fraud cases are unquestionably a strong enforcement focus currently; reportedly, fraud-based offenses lag only immigration and drug cases as concerns for federal officials.

At a recent hearing, he U.S. Sentencing Commission -- which is the body that made the recent reform recommendations so strongly objected to by the DOJ -- noted the ever-lengthening prison terms being meted out to white collar defendants.

That needs to be changed, says the commission, through a new way of calculating sentences. The commission and other critics -- which include defense attorneys and many judges -- argue that sentences (at least in stock fraud cases) need to be calculated in a new way that deemphasizes victims' losses and, instead, places greater emphasis on wrongdoers' gains.

And some person argue that victims' losses should be less emphasized in other types of fraud cases, as well, such as health care and mortgage-related matters.

An unrelenting focus on how much victims lost rather than on what defendants gained through fraud has led to inordinately long sentences in many white collar cases, say reform proponents.

One judge said that he found the DOJ's argument disfavoring any sentencing reduction "singularly unpersuasive."

The matter will likely receive further media attention, given the disparity between the government's no-change position and the clear reform inclinations expressed by many jurists and other parties.

We shall be sure to report material developments to our readers in Florida and elsewhere.

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Coral Gables Office

Frank A. Rubino, Esq.
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