Another federal judge has publicly attacked the Federal Sentencing Guidelines -- this time as they apply to white collar crimes. In his keynote address at this week's American Bar Association National Institute on White Collar Crime conference, U.S. District Judge Jed Rakoff commented, à la Swift, "My modest proposal is that they should be scrapped in their entirety and in their place there should be a non-arithmetic, multi-factor test."
Judge Rakoff joins another federal judge, U.S. District Judge John Gleeson, in sharply criticizing the guidelines, which are promulgated by the U.S. Sentencing Commission. As we discussed in February, Judge Gleeson called the guidelines' recommendations "structurally flawed" and said that the sentences are so unjust that federal judges are simply cutting them. On average, federal judges' drug trafficking sentences are 20 months lower than the guidelines recommend.
Judge Rakoff was not only the keynote speaker at this week's conference but is also a member of a newly-created ABA committee on sentencing policy in federal white collar crimes, which is why his comments focused on that area.
Like Gleeson, though, Rakoff pointed to two crucial issues. First, the guideline recommendations are irrational. Second, they're demonstrably resulting in injustice for defendants.
The guidelines, he argues, rely on the assumption that every situation can be boiled down to the same basic factors, which is fundamentally false. Worse, the primary factor the guidelines use to determine sentences for white collar crimes is the amount of money lost due to the offense. He called that "kind of nuts."
As an example of the unjustly protracted sentences this calculation produces, he pointed to a 2006 case he judged in which the former president of a biotech company was found to have overstated his company's results. Rakoff sentenced him to 3-1/2 years in federal prison.
What sentence did the U.S. sentencing guidelines recommend? 85 years.
"Now that struck me as barbaric, to be frank," he told the audience.
The U.S. Department of Justice has criticized judges who go against the sentencing guidelines, especially in the area of white collar crime. The recent crisis on Wall Street, it says, demonstrates the need to be tough on financial crime.
It's not about having a tough sentencing policy for white collar criminals, according to Rakoff. It's about having a rational sentencing policy.
"This blind emphasis on the loss calculation to the exclusion of everything else leads to bizarre results in case after case after case," he said.
Source: Thomson Reuters News & Insight, "Rakoff says sentencing guidelines should be 'scrapped'," Nate Raymond, March 11, 2013