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White-collar sentencing guidelines modified despite DOJ pushback

Late last year, the U.S. Sentencing Commission revised its sentencing guidelines for financial crimes in recognition, in part, of the declining value of the dollar.

Last updated over a decade ago, the guidelines steer judges in financial crime cases toward prison sentences that vary based on the dollar value of ill-gotten gains. Opinions on the revisions ran across the spectrum. On one end, the U.S. Justice Department objected to the revisions, appearing to base their judgment on public opinion. The Department said the move was contrary to “overwhelming societal consensus.”

On the other hand, many defense attorneys at the American Bar Association felt the proposals were too moderate. They have long advocated for softened guidelines and had pushed for broader revisions. Indeed, even some judges have said the recommended prison terms for financial offenders are too harsh.

In 2005, the U.S. Supreme Court decided, in United States v. Booker, that all federal sentencing guidelines were advisory. Prior to the decision, they were mandatory — judges’ hands were tied, and the specific mitigating circumstances of each case had no bearing on the punishment imposed. Following Booker, judges would often hand down sentences in fraud cases that fell short of the Sentencing Commission’s guidelines. This illustrates that the recent revisions were probably overdue, especially considering the cumulative effects of inflation on the actual value of fraudulent gains.

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