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Scrap the Sentencing Guidelines?

According to online news outlet Main Justice, the Southern District’s Judge Jed Rakoff came out with a “modest proposal” to scrap the U.S. Sentencing Guidelines governing fraud and other financial crimes “in their entirety.”  The plainspoken senior judge, who has presided over many high-profile white-collar criminal cases, told a group of white-collar defense lawyers in Las Vegas that the Guidelines’ relentless focus on loss — whether relevant to the seriousness of the offense or not — is “kind of nuts.”

As we have pointed out in numerous sentencing briefs filed in federal court, the loss tables driving the Guidelines were ratcheted up twice, without any empirical data or rationale to support the increases.  The first time was for administrative convenience (to align the fraud table with the tax table) and the second appears to have been in response to financial scandals like Enron.  The white collar guidelines also contain countless enhancements, for “sophisticated means,” for health-care related crimes, and for crimes involving cemeteries, to name a few.  Judge Rakoff said the numbers are arbitrary: “The Sentencing Commission to this day — to this day — has never been able to articulate why they have two points for this or four points for that. These are just numbers and yet, once they are in place, the whole thing is blessed and said to be rational.”

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