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Another Federal Judge Blasts Federal Sentencing Guidelines

"My modest proposal," says U.S. District Judge Jed Rakoff of the federal sentencing guidelines, "is that they should be scrapped in their entirety." Specifically, the federal judge was referring to the mechanical calculation required for those convicted ofwhite-collar crimes, and he gave a specific case as an example of the injustice so easily created by their application.

The case involved the former president of a now-defunct biotech company called Impath Inc., who was convicted of overstating the company's financial results. According to Judge Rakoff, the federal guidelines' calculation for sentencing in white-collar crimes overemphasizes the amount of victims' losses and underemphasizes factors such as intent, which judges have traditionally used to determine the defendant's actual culpability, which Rakoff called "kind of nuts."

The guidelines would have sentenced the biotech company president 85 years in federal prison. "That struck me as barbaric, to be frank," said Judge Rakoff. Instead, the judge sentenced him to 3-1/2 years.

Judge Rakoff made his argument against the guidelines as part of his keynote address at last week's conference of the National Institute on White-Collar Crime, which was sponsored by the American Bar Association. The group recently created a new committee on how sentencing for federal white-collar and financial offenses ought to be changed, and Rakoff has been tapped for that committee.

Judge Rakoff isn't the first federal judge to denounce the guidelines for relying on a mechanical calculation that produces unjust results. As we discussed last month, U.S. District Court Judge John Gleeson sharply criticized the guidelines' application in federal drug trafficking cases in a special memorandum in the case U.S. vs. Diaz.

The U.S. Sentencing Commission fired back at Judge Rakoff's remarks, pointing to its own report, released in January, in which it reaffirmed its own strategy for white-collar crime sentencing as "strong and effective" in the face of serious abuses during the financial crisis.

But Rakoff says the guidelines have a "fundamental flaw": they assume every situation can be boiled down to a number.

"The Sentencing Commission to this day has never been able to articulate why it has two points for this, or four points for that," he told conference attendees. "These are just numbers. And yet once they are placed the whole thing is blessed and said to be rational." U.S. District judges throughout the country are pointing out that the sentencing guidelines on white-collar crimes are arbitrary and not based upon careful study and empirical evidence.

Source: Thomson Reuters News & Insight, "Rakoff says sentencing guidelines should be 'scrapped'," Nate Raymond, March 11, 2013