In November, the American Bar Association (ABA) published, A Report on Behalf of the American Bar Association Criminal Justice Section Task Force on the Reform of Federal Sentencing for Economic Crimes. The report outlines suggested changes to the U.S. Sentencing Guidelines, which govern sentence recommendations in Federal criminal cases. The ABA’s report highlights that these guidelines should be updated, not only for drug crimes, but also for financial or economic criminal activity.
The Current Loss-Driven Model
The existing model for sentencing people and company’s convicted of economic crimes is driven primarily by the “loss” factor–that is, how much money was lost as a result of a person or company’s criminal activity. Using the current model, the loss factor sets the baseline for sentencing. Once the baseline is established, a judge can add other criteria, such as the number of victims and the methods in which the criminal activity was carried out, to increase the recommended sentence. However, the amount of loss remains the most important factor in determining a recommended sentence under the U.S. Sentencing Guidelines.
The higher the dollar amount, the longer the recommended prison sentence. Federal criminal defense attorneys in Raleigh often see the recommended sentence under the U.S. Sentencing Guidelines spiral out of control when loss is the determining factor. In their reform report, the ABA highlights the importance of evaluating the entirety of the case when determining how to sentence and suggests concrete changes to the Guidelines for economic crime sentencing.
Rather than consider only loss (and the crime of conviction) to determine the baseline sentencing range, the ABA suggests consideration of three criteria: loss, culpability and victim impact. Each characteristic is broken down into levels ranging from minor to serious crimes.
Using this three-part framework, the ABA’s recommendation offers judges additional important criteria (culpability and victim impact) to consider in determining the baseline sentence. For example, under the new model, the baseline recommended sentence for a minor (or low culpability) participant in an economic crime causing a high dollar amount of loss, say more than $10 million, would be similar to a high culpability participant in an offense causing $1,000,000 in loss (all else equal).
Additionally, the ABA’s recommendation would put additional weight on the varying levels of victim impact that are not taken into consideration when viewing the dollar amount of the victim’s loss alone. Such considerations include the bankrupting of an individual by causing a loss that might not severely impact a company (which would result in an increased recommended sentence), as well as the extent to which the victim may have contributed to the offense in some manner (which would decrease the recommended sentence).
The ABA’s recommendations have not been adopted by the U.S. Sentencing Commission, and the U.S. Sentencing Guidelines are merely suggestions that judges have to consider but do not have to follow. However, it is important for Raleigh Federal criminal defense attorneys to be aware of the ABA’s suggestions so they can consider incorporating them into their presentations to the court when appropriate.
At North Carolina law firm Cheshire, Parker, Schneider & Bryan, we represent anyone who has been charged with economic crimes. For a free evaluation of your case, contact one of our Raleigh federal criminal defense attorneys today!