According to recent statistics published by the Department of Justice, the average prison sentence imposed on individuals convicted of antitrust crimes is 20 months. Although the sentencing guidelines are now merely advisory, they still carry enormous weight. The major factor leading to draconian sentences in these cases has been the “volume of commerce” associated with the offense, a numerical score based on the dollar value of the affected business at issue that can ratchet up a defendant’s Sentencing Guidelines range.
To make matters worse, in almost every case, Department of Justice Antitrust Division prosecutors also routinely invoke the so-called “bid rigging enhancement,” which tacks on one additional point to a defendant’s guidelines offense level in cases involving the submission of “non-competitive” bids. The department relies on a broad interpretation of “non-competitive bids” to encompass just about any form of collusive market activity. Most probation officers and judges go along with the department’s approach. Depending on the overall offense level and criminal history, this seemingly small enhancement can result in several months, and even as much as one year, of additional jail time under the guidelines range.
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