The Experts below are selected from a list of 78 Experts worldwide ranked by ideXlab platform
O Frank - One of the best experts on this subject based on the ideXlab platform.
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recalibrating the federal economic crime Guideline an admiring rejoinder to judge bennett and friends
Social Science Research Network, 2017Co-Authors: O FrankAbstract:This is a response to an article by U.S. District Judge Mark Bennett and Professors Justin Levinson and Koichi Hioki in which they critique some deficiencies in the current Federal Sentencing Guideline governing economic crime (U.S.S.G. Section 2B1.1), present the results of their own survey of judicial attitudes toward Sentencing a representative fraud case, and make some useful prescriptions for change. While I agree with most of their diagnoses and virtually all of their prescriptions, there are points on which we are not entirely in accord. Moreover, the data from their survey may point in slightly different directions than they suggest. After discussing their survey results, I offer suggestions on how the federal economic crime Guideline might be recalibrated. I note that, according to U.S. Sentencing Commission data, in 2001-2002, federal district judges seemed to have been more comfortable with the sentences prescribed by the Guidelines than in the years before or since that interval. This suggests that, for those who believe federal economic crime sentences for some classes of defendants are commonly too high, sentence levels in that period might provide a good reset point. I also address proposed changes to particular components of the economic crime Guideline including the loss table, specific offense characteristics, the victim table, the sophisticated means enhancement, and a propose departure for pecuniary gain.
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loss revisited a defense of the centerpiece of the federal economic crime Sentencing Guideline
Missouri law review, 2017Co-Authors: O FrankAbstract:I. INTRODUCTION Roughly twenty years ago, I was an Assistant U.S. Attorney detailed as Special Counsel to the U.S. Sentencing Commission. Andy Purdy, then-Deputy General Counsel to the Commission, pulled me aside and asked me to study the deficiencies of the then-separate Guidelines governing theft and fraud (1) and to work with Commission staff to propose some remedies. That request began my involvement in the six-year-long process that produced, in 2001, the consolidated economic crime Guideline, U.S.S.G. [section]2B1.1. I was, for better or worse, one of the principal architects of Section 2B1.1 in its consolidated 2001 form. (2) Over time, I have become a pointed critic both of errors we made in 2001, (3) and of some of the ways the Sentencing Commission has since amended Section 2B1.1. (4) Nonetheless, I still support the basic structure of Section 2B1.1 and its central component--scaling offense seriousness in large measure based on the economic loss caused or intended by the defendant. In particular, I remain convinced that the definition of "loss" adopted in 2001 remains fundamentally sound. Recently, the Missouri Law Review published a thoughtful article from Daniel Guarnera sharply criticizing the component of the loss definition dealing with intended loss, (5) and, in particular, a clarifying amendment to that definition adopted effective November 1, 2015. (6) The Law Review's editors asked me to respond to Mr. Guarnera. I agreed in part because Mr. Guarnera's central arguments, though vigorously expressed, seem to me unpersuasive, but primarily because the invitation provided me an opportunity to defend the conceptually sound core of a Guideline that has often, and sometimes deservedly, been the subject of pointed criticism. II. Sentencing ECONOMIC CRIMES UNDER THE FEDERAL Sentencing GuidelineS: AN INTRODUCTION A. The Federal Sentencing Guidelines in Brief At their core, the Federal Sentencing Guidelines are a system for assigning to each convicted federal defendant a Sentencing range. (7) This Sentencing range is determined by reference to a grid, the vertical axis of which measures the seriousness of the offense(s) for which the defendant is being sentenced--his or her "offense level"--and the horizontal axis, which measures the defendant's prior criminal history--his or her "criminal history category." (8) The intersection determined by these two numbers is a range of months--the defendant's "Sentencing range." (9) In addition to rules for determining a Sentencing range, the Guidelines have provisions concerning the conditions under which, according to the Sentencing Commission, judges ought to consider Sentencing within, above, or below the calculated Sentencing range. (10) Before the U.S. Supreme Court's 2005 decision in United States v. Booker, (11) a properly calculated Sentencing range was deemed presumptively correct and was thus strongly determinative of the judge's sentence. (12) Once Booker transubstantiated the Guidelines from mandatory to advisory, the Sentencing range remained, at the least, an influential starting point for a judge's Sentencing determination. Critical to any discussion of the post-Booker era is the understanding that the Guidelines, theoretically advisory though they may be, retain a powerful effect on the sentences defendants actually receive. Just under half of all sentences are still imposed within the judicially calculated Guideline range, (13) and most sentences imposed outside the applicable range remain fairly close to that range. (14) Therefore, the Guidelines still matter, and discussions about the strengths and weaknesses of particular Guideline rules retain pressing significance for the defendants sentenced daily in federal courts. We are concerned here with a subset of those Guideline rules that determine the "offense level" and thus determine the defendant's position on the vertical axis of the Guidelines' Sentencing Table. …
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loss revisited a guarded defense of the centerpiece of the federal economic crime Sentencing Guideline
Social Science Research Network, 2016Co-Authors: O FrankAbstract:This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime Sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss." The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.The article was solicited as a response to an article by Mr. Daniel Guarnera, published in the same issue of the Missouri Law Review, in which Mr. Guarnera argues for a revision of the definition of intended loss to include unrealized harms as to which the defendant was reckless.
Jeffery T Ulmer - One of the best experts on this subject based on the ideXlab platform.
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discretion and disparity under Sentencing Guidelines revisited the interrelationship between structured Sentencing alternatives and Guideline decision making
Journal of Research in Crime and Delinquency, 2020Co-Authors: Noah Painterdavis, Jeffery T UlmerAbstract:Objectives:We argue that the reasons court actors conform to or depart from Sentencing Guideline recommendations likely vary depending on whether the decision involves an alternative sanction or in...
Julian V. Roberts - One of the best experts on this subject based on the ideXlab platform.
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the role of criminal record in the Sentencing process
Crime and Justice, 1997Co-Authors: Julian V. RobertsAbstract:An offender's criminal history plays an important role in Sentencing in all jurisdictions. Statutory enhancements for repeat offenders exist in most countries, and there is widespread public support for harsher penalties for recidivists. Advocates of general or specific deterrence support a recidivist premium on the grounds that recidivists are more likely to reoffend and need stronger disincentives. Incapacitationists argue that longer detention is required for offenders with a greater likelihood of reoffending. Most desert-based theorists support a limited Sentencing discount for first offenders. State and federal Sentencing Guideline systems in the United States attach great importance to criminal history information, but there is considerable diversity in the way in which different systems define and limit the use of previous convictions. This essay explores a number of important policy issues relating to the use of criminal history information, including definitions of what should be included in a cr...
Noah Painterdavis - One of the best experts on this subject based on the ideXlab platform.
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discretion and disparity under Sentencing Guidelines revisited the interrelationship between structured Sentencing alternatives and Guideline decision making
Journal of Research in Crime and Delinquency, 2020Co-Authors: Noah Painterdavis, Jeffery T UlmerAbstract:Objectives:We argue that the reasons court actors conform to or depart from Sentencing Guideline recommendations likely vary depending on whether the decision involves an alternative sanction or in...
Arie Freiberg - One of the best experts on this subject based on the ideXlab platform.
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Sentencing Guideline schemes across the united states and beyond
Social Science Research Network, 2014Co-Authors: Sarah Krasnostein, Arie FreibergAbstract:Sentencing Guidelines are among a number of mechanisms that have been used to address the problem of how to balance sufficient discretion to individualize sentences with sufficient constraint to ensure equal justice and achieve other Sentencing policy goals. The difference in where that balance lies is a policy choice that distinguishes the various Sentencing Guideline systems. This essay examines those choices. It assesses the federal and Minnesota Guideline systems and the Guideline system operating in England. It describes the rejection of Guidelines in New Zealand, Canada, and Australia, which challenges the values of structured Sentencing. Finally, the benefits and disadvantages of Guidelines are looked at alongside the conditions necessary for their successful implementation. The best of the Guideline systems are not perfect, but they indicate how other jurisdictions can better regulate Sentencing discretion in order to promote both proportionate and equal outcomes at the levels of theory and practice.
