Lost: the Vanishing Relevance of the Federal Fraud Guidelines

This past summer, the Justice Department added to the growing controversy over the sentencing of white-collar defendants by asking the United States Sentencing Commission to address the growing disparity in sentences meted out by federal judges.¹ Specifically, the Justice Department complained that the guidelines “have lost the respect of a large number of judges,” and the sentences imposed have “largely lost [their] moorings to the sentencing guidelines.” As recognized in the attendant press coverage, the department’s letter was unusual in the force of its criticism that sentences for white-collar fraud were increasingly set “without regard to the federal sentencing guidelines,” resulting in what it deemed to be an “unacceptable” level of inconsistency.

Lost in the Justice Department’s letter is an appreciation of the dilemma confronting district judges in imposing sentences in a white-collar fraud offense today. And if in fact many district court judges have “lost respect” for the guidelines, blame can be laid squarely at the door of what Eastern District Judge Frederick Block memorably described as the guidelines’ “one shoe fits all” calculations that render fashioning an individualized sentence all but impossible.²