WASHINGTON — The federal panel that sets sentencing policy eased penalties this year for potentially tens of thousands of nonviolent drug offenders. Now, defense lawyers and prisoner advocates are pushing for similar treatment for a different category of defendants: swindlers, embezzlers, insider traders and other white-collar criminals.
Lawyers who have long sought the changes say a window to act opened once the U.S. Sentencing Commission cleared a major priority from its agenda by cutting sentencing guideline ranges for drug crimes.
The commission, which meets Thursday to vote on priorities for the coming year, already has expressed interest in examining punishments for white-collar crime. And the Justice Department, though it isn’t advocating wholesale changes, has said it welcomes a review.
It’s unclear what action the commission will take, especially given the public outrage at fraudsters who stole their clients’ life savings and lingering anger over the damage inflicted by the 2008 financial crisis. But the discussion about tweaking sentences for economic crimes comes as some federal judges have chosen to ignore the existing guidelines as too stiff for some cases and as the Justice Department looks for ways to cut costs in an overpopulated federal prison system.
Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency’s sake. Advocates arguing that white-collar sentencing guidelines are “mixed up and crazy” could weaken support for keeping them in place, said Ohio State University law professor Douglas Berman, a sentencing law expert.
The commission’s action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say.
Just as drug sentences have historically been determined by the amount of drugs involved, white-collar punishments are typically defined by the total financial loss caused by the crime. Advocates hope the commission’s decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.
A 2013 proposal from an American Bar Association task force would do exactly that, encouraging judges to place less emphasis on how much money was lost and more on a defendant’s culpability. Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme’s duration and sophistication, and whether the defendant actually financially benefited or merely intended to.
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